The controversy around the constitutional overhaul proposed by the Netanyahu government understandably leaves outside observers confused. The purpose of this article is to understand this controversy and to suggest a constructive solution to the current constitutional crisis.
In the absence of a written constitution, Israel’s system of checks-and-balances between the three branches of government has evolved empirically. For the first three decades that followed Israel’s independence in 1948, the Socialist Mapai party dominated Israeli politics. In the absence of a bicameral parliament, of a presidential veto to legislation, and of regional elections for the Knesset, the only counter-power to the government was (and still is) the Supreme Court. Menachem Begin was full of praise for the Judiciary precisely because judges were a shield of last resort in a system dominated by his nemesis David Ben Gurion.
In contemporary Israeli politics, judicial activism is generally criticized by the right and defended by the left. But, five decades ago, the opposite was true. Indeed, Yitzhak Rabin resigned in 1977 because then-Attorney General Aharon Barak decided to prosecute him over the bank account he and his wife illegally held in the U.S. (Rabin’s resignation paved the way for Likud’s historical victory).
Israel’s Supreme Court became more activist under the presidency of Meir Shamgar (1983-1995) and of Aharon Barack (1995-2006). During that period, the Court made five profound changes to Israel’s constitutional order by declaring that:
- Israel’s basic laws collectively constitute a de facto constitution and that the Court has the authority to strike down unconstitutional legislation;
- Everything is justiciable, meaning that the Court can rule on any matter and not only on legal ones;
- There should be no restriction to petitioning the Court, and therefore standing applies to anyone;
- The Attorney General’s advice is binding and must be accepted as is by the government;
- The Court can strike down government decisions not only for being illegal but also for being “unreasonable” in the Court’s opinion.
Some of those principles are common in other democracies. But, in Israel, they were not the outcome of legislation nor of public debate. They were simply and unilaterally imposed by the Court itself. This judicial overreach went further yet after the Knesset passed in 2018 a basic law that officially defines Israel as a nation state. The Court was expectedly petitioned to strike down the law.
According to its own doctrine (i.e., basic laws enjoy a constitutional status), the Court should have dismissed the petitioners out of hand. It did not. Rather, the Court argued that it was free to revise its own doctrine and strike down basic laws as well. The new basic law was spared that fate only because the Court could not find anything wrong with it.
This new constitutional order produced an imbalance because the Judiciary ends up having the last word on matters of policy, and because the activist Court is now used as a de facto second chamber by the opposition when it loses a vote in parliament. Add to this the fact that the Israeli left was dealt a fatal and durable electoral blow by the Second Intifada, while it can count on sympathetic judges in the Court, and you understand why the Israeli right has been bemoaning for the past two decades that it keeps winning at the ballot box only to be struck down by the bench.
Hence has judicial activism become a right-left issue in Israeli politics. Having won a majority after five consecutive inconclusive elections, and having formed a government that sees judicial overhaul as a priority, the pro-Netanyahu right feels that it has hit the jackpot and that it cannot let go of a golden opportunity.
The reforms presented by Yariv Levin on January 4th, 2023, include the following:
- The government would handpick Supreme Court judges of its liking;
- The Court would in effect lose its power to strike down unconstitutional legislation because the Knesset would be able to re-legislate it with a simple majority of 61;
- The Court would no longer be able to use the principle of “unreasonableness” to strike down government decisions;
- The ruling of government legal advisors would cease to be binding, and ministers will be entitled to hire and fire their ministry’s legal advisor at will without the involvement of the Ministry of Justice.
In effect, the government would become mostly unrestricted.
Altogether, those four reforms go too far, and they would replace one imbalance with another instead of fixing the imbalance produced by the Court over the years. In order to improve checks-and-balances and to enjoy broad public support, the reform of Israel’s judicial system should include the five elements below:
- The principle of justiciability (i.e., the purview of the High Court) must be clearly delineated so as not to apply to all aspects of government policy and of Knesset legislation;
- The principle of “unreasonableness” should be restricted but not repealed altogether – as proposed in fact by Supreme Court Justice Noam Solberg;
- Standing should be narrowed to petitioners who can prove that they are affected by a law or administrative decision;
- Both judicial review of legislation and the override of the Court should require a special majority, not a simple one. Israel should adopt a charter of basic rights and freedoms if it is to add an override clause to its mechanism of checks-and-balances;
- The override clause should not apply to the fundamental rights spelled out by the bill of rights. Basic laws should not be within the reach of judicial review, but the Knesset should not escape judicial review just by arbitrarily adding the adjective “basic” to any legislation.
Such reforms need to be discussed and to gather wide support. The current coalition controls 53% of the Knesset but only received 48.38% of the popular vote. It should not force radical reforms with the support of barely half of the electorate. Recent polls clearly show that most Israelis do not want an imbalanced and rushed reform.
As for the committee that appoints judges, it has already been reformed in a positive way. The committee is composed of nine members: the minister of justice, another cabinet member, two members of Knesset, two members of the lawyers’ association, and three Supreme Court judges (including the Court’s president). The assertion that “judges appoint themselves” was mostly true until 2008 because the three Justices would team up with the lawyers’ association to impose their picks.
But this is no longer the case. In 2008, the law was amended so as to require a majority of seven out of nine, thus breaking up the “automatic majority” of the judges. All members of the committee are now forced to compromise. This mechanism, which enabled conservative justice ministers such as Ayelet Shaked and Gideon Sa’ar to block overly activist judges and to nominate more moderate ones, shows that piecemeal and constructive reforms are possible. This being said, an additional reform of the committee can be discussed.
The compromise proposal of President Herzog, as a basis for discussion, is welcome. The State of Israel needs an agreed, clarified, and balanced constitutional order.