Opinion

Ending the rule of the judicial oligarchy

Why do we even bother electing Knesset members if it is ultimately the court that decides what laws and decisions are “reasonable,” based on the justices’ own views?

Israeli Supreme Court president Esther Hayut and fellow justices arrive for a court hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister, at the Supreme Court in Jerusalem, Jan. 5, 2023. Photo: Yonatan Sindel/Flash90
Israeli Supreme Court president Esther Hayut and fellow justices arrive for a court hearing on petitions demanding the annulment of the appointment of Shas leader Aryeh Deri as a government minister, at the Supreme Court in Jerusalem, Jan. 5, 2023. Photo: Yonatan Sindel/Flash90
Dror Eydar. Source: LinkedIn.
Dror Eydar
Dror Eydar is Israel's ambassador to Italy

The protesters taking to the streets in Israel are concerned that Justice Minister Yariv Levin’s proposed judicial reforms will result in unchecked government power. This is a valid concern: The checks and balances between the three branches of government are the foundation of democratic life.

But what if the judiciary is already stronger than the other two branches, and lacks proper restraints?

Currently, there is no check on the power of Israel’s Supreme Court except the justices’ own will. The anti-reform demonstrators have faith in those sitting on the highest court of the land—perhaps because they share their values. But many others do not share their confidence, having seen how the justices let their personal views shape their rulings, especially on issues of religion and state, security and nationhood.

The proponents of the reforms have witnessed their freedom to decide on hot-button issues being taken from them time and again. Other than protest, they couldn’t do anything because the court disagreed with them: It gave Israel’s Basic Laws a special status, even though the Knesset never gave it the right to do so. For a certain segment in Israeli society, it has been very convenient to have the courts “do its bidding” whenever there are insufficient votes in parliament; among the justices, this camp has enjoyed a permanent majority on the bench.

Yes, Basic Laws are de facto chapters of a constitution. But what stops the court from ruling on the Basic Laws themselves? Nothing, currently. It could decide to strike down a Basic Law, and then the government would have to accept the ruling to avoid a constitutional crisis. This is how, in the name of “substantial democracy,” the court is undermining the very tenets of democracy. Why do we even bother electing lawmakers if it is ultimately the court that decides what government laws and decisions are reasonable, based on the justices’ own views?

By granting itself the authority to rule on Basic Laws, the court’s strength has become unparalleled compared with any other judicial branch in the world. Such power corrupts even the most righteous. This week’s Torah portion includes the verse, “You shall take no bribe, for a bribe blinds the eyes of those who have sight and perverts the words of the righteous” (Exodus 23:8). We normally see this prohibition as being directed at public officials, but it was originally about the judges in biblical times. The Talmud tells us that bribes can also take the form of one of the parties trying to cozy up to the judge in order to get a favorable ruling. If this was a danger in private cases, this is all the more relevant when issues of national importance reach the court.

A situation where justices enjoy unlimited power and are simply assumed to have better judgment than elected officials could result in blinding their eyes to their compatriots; it could also pervert their rulings, slanting them toward the social circle they belong to.

Israel is a Jewish democracy, of which the Law of Return is an existential part. Would there be anything that could stop the court from striking down that law if it decided that it was discriminatory and violated Basic Law: Human Dignity and Liberty? Are you, the protesters who have resisted any type of judicial reform, certain that such a situation would never see the light of day? I am not, and neither are many others.

Human rights are first and foremost about the right of an individual to determine their own fate through the ballot box. Israelis have never placed their independent thinking and values in the hands of a judicial oligarchy, however smart it may be; we elected this government for this purpose—to win back our freedom.

Dror Eydar is Israel’s ambassador to Italy.

This is an edited version of an article originally published in Israel Hayom.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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