by Hillel Fendel
Once again, Israel features widely in the world media (tell me something I didn't know…) – and this time because of the fear of its new judicial reforms. Some have gone so far as to call the new program, championed by new Justice Minister Yariv Levine, the "end of Israeli democracy" and similar apocalyptical forecasts.
The facts, of course, not only belie this unwarranted alarmism, but actually tell precisely the opposite picture. Let us therefore clear up the situation so that our readers abroad can know, and spread, the situation as it truly is.
To this end, let us first quote Law Professor Avi Bell at the University of San Diego and Bar Ilan University. Prof. Bell has authored an opinion piece in Newsweek entitled, "Israel's Judicial Reform Will Strengthen Its Democracy." If that doesn't tell you all you need to know, here are some important excerpts:
"These cries [against the reforms] are alarmist, hyperbolic, and simply lacking in historical context… The [reforms will give] the Israeli Supreme Court explicit statutory authorization to overturn legislation, while also preserving the Knesset's authority to legislate. [It will also] reduce the ability of the Supreme Court to overrule elected officials' decision on the grounds of the Court's mere policy preferences…
"Sometimes populist, sometimes progressive, and always self-aggrandizing, Israel's Supreme Court has become uniquely juristocratic – unbound by any clear rules, and possessing power unprecedented in any other modern democracy.
"The turning point in the Court's overreach came in the 1990s, when it declared a "constitutional revolution," giving itself unprincipled and unrestrained power to overturn parliamentary legislation. It was an unprecedented move for any Western democracy. At first, the Court justified its power grab on the grounds that Israel's Basic Laws – laws earmarked for inclusion in a possible future written constitution – had themselves become a quasi-constitution... But over time, the Court placed itself above the Basic Laws too – not only by rewriting them, but also by declaring itself the final arbiter of whether they are valid in the first instance. In recent years, the Court has dismissed the Basic Laws framework altogether, announcing that it can strike down Basic Laws and other legislation for any reason it wants, such as finding the laws "too political" or "insufficiently deliberated."
"Armed with unbridled authority, today's Israeli Supreme Court habitually implements its policy preferences over those of Israel's legislators on foreign policy matters, military decisions, budgetary priorities, taxes, welfare benefits, radio and television programming, and every other notable governmental decision… The Supreme Court is currently deliberating whether to fire the new government's treasury minister on the grounds that a "reasonable" government would have appointed someone else…
"The Supreme Court was once Israel's most trusted institution. But today, with the judiciary having cast off legal restraints, a majority of the public no longer trusts it…
"Contrary to the democracy doomsdayers, [the new] measures would actually bring Israel closer in governance to other democracies, such as Canada and the United States…
"In reality, Israel's radically democratic political culture is healthy and vibrant. Judicial reform will ensure it remains so."
We highly recommend that you read the entire article.
New Finance Minister Betzalel Smotrich also weighed in on the topic, in a recent Wall Street Journal editorial. He wrote that the planned judicial reforms will imitate the US model by limiting the power of the judiciary:
“In the US, elected politicians appoint federal judges, including Supreme Court justices, making the bench at least indirectly responsive to the people. In Israel, sitting Supreme Court justices have veto power over new appointments to the court… Our emphasis on judicial reform is meant to bring Israel closer to the American political model with some limited checks to ensure the judicial system respects the law."
In a related issue on which Smotrich and Israel's new government have faced attacks, he wrote that “the new government will never seek to impose anything on a citizen that goes against his or her beliefs.” Though his party, Religious Zionism, has proposed a bill to allow businesses to refuse service to customers if this flies in the face of their own religious convictions, Smotrich explained that this "is no different from the rights the US Supreme Court recently affirmed in its Masterpiece Cakeshop decision" – which justified a Colorado baker's refusal to bake a wedding cake for a gay couple. The Court explained in its decision that while gay persons and same-sex couples are afforded civil rights protections under the Constitution, religious and philosophical objections to same-sex marriage are also protected views and can also be protected forms of expression.
The Kohelet Forum has issued a short video clip explaining why it is democratically important to rein in the Supreme Court. It cites several examples of Supreme Court decisions that, arguably, never should have been adjudicated: The extent to which women's basketball games must be broadcast nationally, the IDF's open-fire instructions, military haircuts, the disqualification of two questions on the Bar Exams, subsidizing private monkey farms, the date of the holiday of Lag BaOmer, whether a candidate for IDF Chief Rabbi apologized sufficiently for previous remarks, and much more of the same.
Many of the objections to reining in the Supreme Court emphasize that the Court stands in the way of the majority forcing its views on the defenseless minority. Yet fascinatingly, it was under the term of former Supreme Court Chief Justice Aharon Barak – the man responsible for the judicial revolution giving the Court its current expanded powers – that two particularly hard-hitting decisions were made:
· The Arutz-7 radio station, the only radio voice of the nationalist camp at the time – was shut down.
· The Disengagement plan involving the expulsion of some 10,000 Jews from their homes in Gush Katif and northern Shomron was approved, even though a Likud Party referendum had actually rejected it.
In short, as Knesset Speaker Amir Ohana tweeted, "The reforms presented by Minister Levine for corrections and balances between the judicial system and the democratically-elected Knesset and government are precisely the embodiment of democracy: The public, via the officials it elected – will take back its destiny into its own hands."