Israel’s judicial reforms: Good for democracy and the rule of law

A current reform proposal would permit the Israeli Supreme Court to only block or invalidate government actions that violate actual laws.

Supreme Court justices arrive for a hearing in Jerusalem on the appointment of Shas leader Aryeh Deri as a government minister, Jan. 5, 2023. Photo by Yonatan Sindel/Flash90.
Supreme Court justices arrive for a hearing in Jerusalem on the appointment of Shas leader Aryeh Deri as a government minister, Jan. 5, 2023. Photo by Yonatan Sindel/Flash90.
Morton A. Klein and Elizabeth Berney

The left has been screaming that the new Israeli government’s judicial reform proposals are “extreme” and “the end of democracy.” However, honest examination reveals that the Israeli Supreme Court has extraordinary, autocratic, unchecked power, and that reform is desperately needed and will be good for democracy, the rule of law and Israel’s economy.

Democracy is rule “of the people, by the people, for the people.” The Israeli and U.S. legislatures and executive are democratically elected and answerable to the public. But the two countries’ judicial systems are vastly different, starting with judicial selection. The U.S. public selects judges through its democratically-elected representatives: The president nominates new justices and the Senate decides whether to confirm them. Congress also has the power to impeach justices.

By contrast, in Israel, the Supreme Court self-selects and self-ousts its own justices. The court has the controlling vote and veto on a nine-person “judicial selection committee” that selects new judges. The Knesset has no power to impeach justices, who can only be removed by the judicial selection committee, or by a disciplinary court appointed by the Supreme Court.

The Israeli Supreme Court’s “self-selection” and continuing control over its own composition has enabled it to seize and maintain enormous, unchecked power.

Thus, in a 2022 Wall Street Journal op-ed, Finance Minister Bezalel Smotrich suggested adopting a democratic U.S.-style judicial selection process. The Zionist Organization of America had previously made the same sensible suggestion. Promoting democratic judicial selection is surely not an “extreme” position.

Notably, a weaker (even more non-extreme) judicial selection reform is currently under consideration—replacing two Israel Bar Association representatives (i.e., two lawyers beholden to the court) on the judicial selection committee with two appointees of the justice minister. This would still leave the justices with enough votes to veto selections.

Customarily, democracies implement checks and balances limiting the power of each branch of government.

Thus, the U.S. Supreme Court must uphold the U.S. Constitution; can only hear limited types of cases and actual, justiciable controversies between parties who have legal “standing” (an actual, redressable injury related to an alleged wrong); does not determine non-justiciable political policy questions (the “political question doctrine”); does not re-write laws; and requires a six-justice quorum to hear typical cases (approximately 80 cases per year).

By contrast, Israel’s Supreme Court has usurped and arrogated to itself the power to flout, invalidate and re-write laws and policies enacted by the people’s elected Knesset and government representatives simply because justices subjectively view those democratically-enacted laws and policies as “unreasonable” or “inappropriate.”

Moreover, the Israeli Supreme Court hears petitions from parties without “standing” and cases that are non-justiciable in western democracies. The court even determines political and military policies. As a result, anti-Israel NGOs flood the court with “lawfare” (legal warfare) cases designed to harass the Israeli government and military. This could not happen in the United States or any other normal western judicial system.

Further, panels comprising only three justices decide most of the Israeli Supreme Court’s 10,000 cases per year. Thus, just two of Israel’s self-appointed justices (the majority of a three-judge panel) can nullify Israel’s elected legislature and government, based on those justices’ personal preferences.

The many horrendous Israeli Supreme Court decisions include:

• The court permitted interim Prime Minister Yair Lapid to surrender over 300 miles of Israeli Maritime Territory and gas fields to Hezbollah-controlled Lebanon without the legally required Knesset vote and national referendum. The court’s violation of Israel’s referendum law will enrich Hezbollah with billions of dollars and damage Israeli security and the Israeli economy.

This case demonstrated that the current system is disastrous for the economy; and that judicial reform will help Israel’s economy.  Economies thrive in systems based on the rule of law—not places where judges’ personal preferences reign.

• The court blocked the IDF from razing buildings used by terrorists to attack Israelis passing on a nearby road, even though the army planned to pay compensation to the buildings’ absentee owners. The court’s decision resulted in a horrific tragedy: Arab terrorists then used the buildings to slaughter a young pregnant woman, Tali Hatuel, driving along the road, and her four young daughters, ages two to 11 years old.

• The court permitted terror-supporting political parties who openly seek to violently overthrow Israel to run for Knesset. The court overturned the Knesset Central Elections Commission’s disqualification of these parties and violated Israel’s Basic Law: Knesset 7a, which bars parties and candidates that incite racism or support armed struggle by an enemy state or terrorist organization against Israel.

• The court permitted the entry into Israel of an anti-Israel BDS activist who headed a Students for Justice in Palestine (SJP) chapter. This violated Israel’s 2017 law barring entry of BDS activists. Then-Minister of Public Security Gilad Erdan said: “the Supreme Court granted a great victory to BDS … [T]he Supreme Court’s decision … has undermined the ability of the State of Israel to fight the boycott activists who harm us all.”

• The court froze the District Court’s and Magistrate Court’s orders to evict Arab squatters living on Jewish-charity-owned properties in Jerusalem’s Shimon HaTzaddik neighborhood. The court also ruled that the Arab squatters could continue living there until completion of land settlement procedures, a process that could take many years or never be carried out. This baseless ruling overturned 50 years of litigation in which the Jewish charities repeatedly proved their ownership of their properties.

A current reform proposal would permit the Israeli Supreme Court to only block or invalidate government actions that violate actual laws. The Court would no longer be able to invalidate government actions simply because the justices don’t like it or think that it is “unreasonable.”

This reasonable reform is much needed to curb the Court’s undemocratic excesses.

Another proposal (which is unlikely to be adopted) is to allow 61 Knesset members to override Supreme Court decisions. When court decisions are merely based on self-selected judges’ personal preferences, and not on a constitution or laws, it furthers democracy and the rule of law to give democratically-elected representatives some override power.

Constitutional republics also have legislative overrides. In the United States, Congress can override Supreme Court decisions by passing Constitutional amendments (plus obtaining state ratification); and can even override certain decisions simply by passing new laws.

It’s thus time to stop bandying about “extremist” labels, and for reasoned consideration of reforms to curb the Israeli judiciary’s unchecked undemocratic power.

Morton A. Klein is the National President of the Zionist Organization of America (ZOA).

Elizabeth Berney, Esq. is ZOA’s director of research and special projects.

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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