Could the judicial reform be Israel's next public health crisis? -analysis

Health and law experts published a position paper based on studies showing strong correlations between levels of democracy and public health.

Doctors and other health professionals protest judicial reform on Monday in Jerusalem. (photo credit: Or Perevoznik)
Doctors and other health professionals protest judicial reform on Monday in Jerusalem.
(photo credit: Or Perevoznik)

Do people who live in stable democracies live longer than people who don’t? A growing group of Israeli scientists believes that the answer is yes.

And they have not been silent about their fear that the judicial reform is also a health crisis.

They recently submitted a position paper on the matter to the Knesset Constitution, Law and Justice Committee to express their “great concern and deep fear.”

The position paper is based on a study

Eighteen leading health and law experts who signed the paper, together with the Zulat NGO, said that Justice Minister Yariv Levin's reforms, which passed in a first reading in the Knesset on Monday, "will fundamentally change the mechanism of checks and balances between the judicial, legislative, and executive branches of government, and will also impact on the field of health."

Their stance is based on international research, including a study of 170 countries over 46 years that was published in 2019 in the Lancet, which found that a country’s democratic experience was correlated with declines in mortality from cardiovascular disease and increases in government health spending.

 Prof. Hagai Levine (credit: Courtesy) Prof. Hagai Levine (credit: Courtesy)
A separate study published in 2015 by the British Medical Journal (BMJ) showed that “the more that a country adheres to the rule of law, the more likely it is that it has a healthy population,” whether defined by lower rates of infant or maternal mortality and fewer deaths by cardiovascular disease and diabetes, or by higher life expectancy.

“The quality of institutions prevails over much else,” the study of 96 countries comprising 91% of the global population showed, adding that the rule of law is a “foundational determinant of health that underlies other socioeconomic, political and cultural factors that have been associated with health outcomes… Health advocates should consider the improvement of the rule of law as a tool to improve population health. Conversely, lack of progress in the rule of law may constitute a structural barrier to health improvement.”

THE WORLD HEALTH Organization holds that policies outside the medical field, from taxation policy to urban planning, could impact health, explained Dr. Adv. Shelly Kamin-Friedman.

“When you diminish individual rights according to the reform, you eventually diminish health,” she told The Jerusalem Post. “Everything is public health.”

The proposed reforms include changing the composition of the judicial selection committee so that the coalition has the majority; requiring between 80% and 100% of Supreme Court judges to agree to render Knesset legislation unconstitutional; implementing an override clause that would allow the Knesset to overrule the court and move forward with legislation the judges have said is unconstitutional; removing the ability of the courts to render decisions by the government as being “unreasonable”; and diminishing the role of the attorney-general and government legal advisers by making the status of their legal opinions non-binding, among others.

The abolition of judicial review eliminates the protection of public health, Kamin-Friedman said, highlighting several examples from the COVID-19 pandemic.

"When you diminish individual rights according to the reform, you eventually diminish health."

Dr. Adv. Shelly Kamin-Friedman

For example, in March 2021, the High Court declared unconstitutional the government’s decision to allow only 3,000 travelers to enter Ben-Gurion Airport per day, imposed to minimize coronavirus transmission.

“Some people are stranded abroad without medical insurance or coverage, at times in corona-ravaged countries,” the court said in its statement. “Others are stuck without medications; some have no money left to pay for their extended stay, yet their visa expired for others. But, most importantly, suddenly and unexpectedly, Israeli citizens are forced apart from their families and friends back home.”

IN ANOTHER CASE in December 2021, the court ruled in favor of the government and the Health Ministry and against rights groups to allow Shin Bet (Israel Security Agency) mobile phone tracing to curb the spread of the Omicron variant. However, the tracing had to be used according to guidelines required by the court.

“Considering the uncertainty around the Omicron variant and its effects… it has not been proven that the Shin Bet authorization poses a disproportionate infringement on the right to privacy which would justify its striking down,” the High Court said.

She said that the court’s authority to examine the government strengthens public trust even when petitions on behalf of “victims of government decisions” are rejected, such as when the government prevented families of fallen soldiers from gathering at cemeteries on Memorial Day. The families petitioned the court, which then discussed the “reasonableness” of such a government decision when COVID was rampant, ultimately rejecting the petition for what it said was public safety.

ISRAELIS TRUST the courts more than the government or political parties. According to the latest Israel Democracy Index, some 42% of the Jewish public trusts the High Court compared to 24% who trust the government, 18.5% the Knesset and 8.5% the political parties.

“The very possibility that the courts can discuss government policy promotes trust, which is very important for implementing public health policy,” Kamin-Friedman said, adding that trust and solidarity go hand-in-hand, as most public crises require “collective action.”

For example, during the COVID-19 crisis, citizens were asked to wear masks, isolate and get vaccinated. She said that most healthy citizens agreed to take these steps to protect themselves and for the common good.

“The acute public controversy over the proposed reform of the legal system in Israel, and specifically with regard to the Supreme Court’s authority to review government decisions, harms social cohesion and could in no time harm solidarity,” the position paper stressed. “The erosion of solidarity will impede the efforts to deal with health crises that are yet to come.”

Kamin-Friedman noted that solidarity is not only necessary in the event of a pandemic but also in the case of an earthquake, nuclear attack or another statewide event, as well as during regular times.

FINALLY, the reforms impact the checks and balances required to protect public health, explained Prof. Hagai Levine, chairman of Israel’s association of Public Health Physicians.

For example, the petition explained that “the independent legal counsel verifies that decisions conform to constitutional principles and examines their compliance with the limitation clause contained in Basic Law: Human Dignity and Freedom, even before the governmental policy goes into effect.”

"Democracy is like health. You only feel its absence when it is gone. So the best cure is prevention."

Prof. Hagai Levine

The proposed policy allows lawmakers to ignore the recommendations of legal counsel, which “could result in the unequal distribution of public resources, including medical services. We have seen this before, in the decision of the Internal Security minister not to allocate corona vaccines to prison inmates, which was nixed thanks to the intervention of the legal counsels and other professionals,” the petition reads.

Levine added that if lawmakers feel they do not have to listen to legal counsel, it could follow that they will not feel obligated to seek advice from other professional experts in all areas.

“Eliminating these checks and balances completely makes it very easy for the government to neglect public health and makes it easier for them to listen to tycoons or pressure groups,” Levine said. “You cannot trust only a politician to protect human rights; you need at least some supervision.”

He said research shows that less democratic countries often fail to protect the most vulnerable, including those with mental illness or disabilities. In addition, when people become afraid to speak up against the government, they fear speaking in general, including seeking therapy.

“Democracy is like health,” Levine said. “You only feel its absence when it is gone. So the best cure is prevention.”