The Knesset and the Court

Israel has shifted from a system of legislative to judicial supremacy.

By AMIEL UNGAR
Judicial cartoon 521 (photo credit: Avi Katz)
Judicial cartoon 521
(photo credit: Avi Katz)
A story that made the headlines a month and a half ago in America got short shrift here. US President Barack Obama laid down a preliminary rhetorical barrage against the Supreme Court just in case they got the wrong idea of ruling Obama Medicare unconstitutional. He fulminated against the unelected judges who assumed the right to invalidate a law passed by a sizable congressional majority.
Similar criticism of the judiciary has been voiced by American conservatives dissatisfied with court rulings in the other direction.
Most of Israel’s mainstream media adores Obama and still hopes to see him as the scourge of Prime Minister Benjamin Netanyahu if and when he gets to exercise the flexibility afforded by a second term.
But the Israeli public could get the wrong idea if Obama’s criticism of judicial activism was extensively reported here. The uninitiated might conclude that it was equally wrong for unelected Israeli justices to legislate from the bench and override Knesset majorities. Even the pro-Netanyahu daily newspaper Israel Today shied away from the story, given its senior staff’s tendency to genuflect before the judicial branch.
It is unfortunate that Israelis are denied the opportunity of having an open discussion of judicial activism. Ever since the constitutional coup d’état of March 1992, surreptitiously achieved through the Knesset’s passage of the Basic Law: Human Dignity and Liberty, Israel has moved from a system of legislative to judicial supremacy. This stealthy transformation naturally engendered calls for a constitutional counter-revolution to restore power to the Knesset.
Now Justice Minister Professor Yaakov Neeman has proposed a law to resolve the conflict. The Supreme Court will be entitled to invalidate a Knesset law with an enlarged nine-member panel. Most Supreme Court decisions are delivered by three justices.
The Knesset, in turn, will be empowered to overrule the court via a special majority of 65 in the 120-member Knesset.
I think Neeman’s number is just right. The President of the Supreme Court Asher Gronis would have preferred a majority of 70 Knesset Members; Neeman’s predecessor, law professor Daniel Friedman, would have gone with 61. Sixty-one is a bare majority; 70 poses too high a bar, particularly as every government majority includes at least a couple of “courtiers,” who are overly deferential to the court. The haggling, however, demonstrates support for the formula in principle. And, as in the famous anecdote about George Bernard Shaw propositioning an aristocratic lady, only the final figure has to be agreed on.
We could have gone with a two-thirds majority in the legislature as practiced in American constitutional amendments, provided the judicial selection process was modified to exclude the participation of serving Supreme Court justices who currently dominate the panel for selecting judges. The selection process would then reflect political trends in Israel, as it does in America.
This, however, is anathema to the Left, which prefers to retain the power of the court as a counterweight to the Knesset, where, since 1977, it has invariably found itself in opposition.
If prior to the constitutional revolution, the court and its supporters would have been ecstatic over the award of judicial review by the Knesset, they have been spoiled by their power of recent years. Neeman was correct in warning them that in Israel, Basic Laws do not have the lofty status of a written constitution.
For example, just as the Human Dignity and Liberty law was voted in by a somnolent pick-up majority, it could be amended or removed by a simple majority, a step that could undermine the entire foundation of judicial review in Israel.
Neeman made his reputation as an attorney by forging compromises, for example, in the conversion dispute in the late 1990s. For a compromise to work, both sides have to make concessions. It is no small concession for a nationalist government to institutionalize and legitimize judicial review of Knesset legislation. It is now up to the court and its supporters to reciprocate the respect accorded them by the legislative branch.