Dear senators and members of Congress,
Earlier this month you received an open letter from former Israeli diplomats presenting their view of the controversy currently raging in Israel over the reform of its judicial system. As far as they are concerned, Israel’s democracy is in danger. This letter is part of a broader phenomenon in which serious people compete among themselves over who will prophesize the greatest catastrophe for the State of Israel due to what they call the “judicial coup.”
The letter paints a demonic picture of the camp represented by the current coalition and headed by Benjamin Netanyahu, who is portrayed as a kind of anti-Christ. Incidentally, opponents of the changes fawn over the late prime minister Menachem Begin, but back in the day, he was portrayed as being a Mussolini and as presenting a great danger to Israel—much in the way that Netanyahu is portrayed today.
This is a simplistic view which divides the world into sons of light and sons of darkness, and therefore sanctifies (almost) total war on the opposing side. Last week, a jurist once nominated for the position of State Attorney called Netanyahu an “Iranian spy”—just one example of the mass psychosis whose waves have reached as far as the United States.
I do not believe that the truth is solely in my hands; indeed, I can only grasp its margins. Nevertheless, here are some of the arguments in favor of judicial reform that until recently were also made by Israeli opposition leaders.
In recent decades, the balance between the branches of Israel’s government has been disrupted in favor of the judiciary. The process is connected to the demographic and social changes that have taken place in Israel since the political upheaval in the country in 1977. Beginning in the 1980s, when the political representatives of the camp that had, until then, ruled unchallenged, understood that this was not a glitch but a trend, they moved debates over questions of values from the political arena to the judicial one.
The Supreme Court did not shy away from engaging in politics; on the contrary, it went out of its way to be political. The court stretched the locus standi—the right to bring legal action before a court—enabling anyone who disagreed with government policy to appeal against it, even if that policy did not directly affect the party bringing the action. In the 1990s, with the enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, a green light was given to the court (in fact was taken by the court—no one had authorized it) to invalidate Knesset legislation. Since that time, the citizens of Israel go to the polls to elect their representatives, but the final word belongs to the Supreme Court, sitting as the High Court of Justice.
You will not be surprised if I say that its rulings are often swayed by the social, class and political affiliation of the judges, who for years have effectively cloned themselves via the Judicial Selection Committee, where they have veto power over the appointment of new judges.
Judging by the cries heard from the Holy Land, it seems that the narrowing by the Knesset of the so-called “reasonableness standard” was tantamount to the destruction of the third Jewish commonwealth. But the grounds of reasonableness, as applied by the court, are an invention of former Supreme Court president Aharon Barak. Where an elected official has acted according to the law and there is no conflict of interest or any other legal issue—and therefore the action cannot be invalidated—Barak, from the height of his understanding as a philosopher, adopted a position according to which if said action is judged to have been “unreasonable” in the eyes of the court, it can nevertheless be annulled.
How is Barak’s judgment, or that of any other justice, better than that of an elected official? How can they be held accountable for the consequences of their decisions?
By the way, there are other grounds on which Knesset legislation can be challenged, only they are anchored in law and reality and not in a judge’s worldview.
One argument raised by its critics is that judicial reform—even after its wings have been clipped—lays the infrastructure for dictatorship. In practice, the opposite is true. For example, the Supreme Court is about to decide whether to incapacitate Prime Minister Netanyahu due to a supposed “conflict of interest.” Should this come to pass, it would represent the democratic choice of the Israeli majority being overruled by the court.
What should we call the rule of unelected judges over elected officials? Plato’s “The Republic” comes to mind; in it, the ideal leader is the philosopher king. But democracy did not interest the great Greek philosopher, and it is not for nothing that some thinkers have seen Plato’s ideas as creating an opening for totalitarianism.
The letter’s authors speak of a “judicial coup,” but if indeed there has been a coup, it took place in the 1990s with the adoption of the Basic Laws Human Dignity and Liberty and Freedom of Occupation. Barak, the Supreme Court president at the time, called it a “constitutional revolution.”
The laws were passed in the middle of the night, without parliamentarians realizing that from now on the court would be able to invalidate their laws. In Knesset debates prior to the vote, whenever the possibility arose that these Basic Laws would be used to invalidate legislation, the answer was that it would not happen. Dan Meridor, who was justice minister at the time and is now a staunch opponent of judicial reform, recently said that “the idiots didn’t understand.”
But you understand. The judicial revolution that fundamentally changed Israel’s constitutional structure was passed by a chance majority of about a quarter of the Knesset, and the Basic Laws were elevated by Aharon Barak to the level of constitutional clauses. Imagine that the U.S. Constitution had been adopted in this way by the Constitutional Convention. Now, as the government tries to repair at least some of the damage, its opponents are calling it a coup.
Two weeks ago, the Supreme Court held a hearing that distilled the argument into a single statement, by Justice Uzi Vogelman. Where does the source of the court’s authority to invalidate Basic Laws come from, given that the court determines that the Basic Laws are constitutional chapters, and the court itself derives its power from Basic Law: The Judiciary? Can the court place itself above its source of authority? Vogelman explained: “The court is authorized to review Basic Laws on the basis of doctrines set forth in our rulings in an expanded panel.”
Note, Vogelman states that the court derives this authority not by virtue of Basic Law: The Judiciary, not by virtue of the sovereign (the people) from which Knesset derives its authority—but from its own rulings! In popular parlance, Vogelman said: “It is so because we say it is.”
When I heard Vogelman’s statement, I recalled from my childhood the exploits of Baron Münchausen. In a story concocted by Rudolf Erich Raspe in the 18th century, the famous baron wishes to leap over a swamp but misses the other bank, and thus begins to sink into the mud, along with his horse. Who will save them? The baron himself: he grabs his own ponytail and pulls, until he manages to lift himself and his horse out of the mud and thus survives.
And we haven’t even talked about the economic threat through which the opponents of reform are attempting to impose their political will on the country (fortunately, Israel’s economy is strong). Or about the attempt by army reservists to impose their political opinion on the government and in fact on the people by threatening to refuse to defend us; an attempt at a silent military coup. If only for that reason, it was crucial to pass the first piece of judicial reform legislation.
We all agree on the necessity of judicial review of the legislative and executive branches, but what creates a counterbalance to the court? Today, the court can rule as it pleases, cancel basic laws and incapacitate a duly elected prime minister. Moreover, Israel was established as a Jewish and democratic state. There is no external mechanism that can prevent the Supreme Court from invalidating the Law of Return on the grounds that it contradicts the Basic Law: Human Dignity and Liberty. Such a case would nullify the Zionist idea underlying the establishment of Israel. For now, we have to rely on the justices’ judgment not to do so. Is that enough?
Originally published by Israel Hayom.