Religious Zionist MK to 'Post': How can we restore Israel's democracy? - opinion

Ever since the election of former president of the Supreme Court of Israel Aharon Barak in 1995, Israel’s democracy has been on the slide.

 FORMER SUPREME Court president Aharon Barak attends a conference, 2019. Ever since the election of Barak as president in 1995, Israel’s democracy ‘has been on the slide,’ the writer argues. (photo credit: YONATAN SINDEL/FLASH90)
FORMER SUPREME Court president Aharon Barak attends a conference, 2019. Ever since the election of Barak as president in 1995, Israel’s democracy ‘has been on the slide,’ the writer argues.
(photo credit: YONATAN SINDEL/FLASH90)

As is usual in the lead-up to elections, some sections of the Israeli political spectrum love to banter about the dangers to Israel’s democracy from this or that person or act.

However, it is usually exactly these sections that defend one of the worst ongoing and arguably increasing abrogations of democracy in allowing Israel’s judicial activism to run amok and place its unelected arbiters above the democratically elected representatives of the people.

Ever since the election of former president of the Supreme Court of Israel Aharon Barak in 1995, Israel’s democracy has been on the slide.

In the constitutional legal world, there are generally two main theories of governmental oversight, judicial activism, the power of judicial review to set aside government acts, and judicial restraint, which is the refusal to strike down such acts, leaving the issue to elected officials to work out.

Barak is known as one of the most extreme purveyors of judicial activism.

 Benjamin Netanyahu, wearing a face mask, leaves the courtroom during a hearing in the Jerusalem District Court last year. (credit: Abir Sultan/Pool via REUTERS) Benjamin Netanyahu, wearing a face mask, leaves the courtroom during a hearing in the Jerusalem District Court last year. (credit: Abir Sultan/Pool via REUTERS)

“There are no acts (of commission or omission) to which the law does not apply. Every act is caught within the world of law,” wrote Barak in his famous treatise ‘Judicial Philosophy and Judicial Restraint’ in 1993.

In other words, Barak gave himself and all those who served with and after him the right to judge everything. There was to be nothing outside his purview, and if justices before him demurred on the issue of the justiciability of an issue, Barak opened it up to make him the de facto arbiter on everything.

It is for this reason that the Israeli judicial system is known to be the most extreme advocates of judicial activism anywhere in the world.

Whereas the judiciary is supposed to be one arm of government that remains as observers on the side, as politics and governance does its thing, until specifically asked to rule, the Israeli judiciary jumps in whenever it feels like it and strikes down laws and government actions without being asked by those most affected.

To exacerbate matters, whereas in other democratic countries judges are appointed by the executive and legislative branches of government, in Israel the method for appointing judges is largely controlled by the judiciary itself.

Granted veto power against potential nominees, Supreme Court justices protect their ranks and the judges who serve in this all-important branch of government do not reflect the will of the people, resulting in an elitist, empowered judiciary that imposes its will on the rest of the country, with absurd and painful implications.

Not since the era of absolute monarchies has there been such absolute power invested in so few.

Moreover, because Israel’s judicial elite generally come from one end of the political spectrum, the people’s voice is rarely actualized.

The Israeli judicial and legal systems need a restart

THIS IS why the Israeli judicial and legal system requires a restart.

Not to make it less democratic, but to make it more so.

It is time that the power returned to the people.

The people who are represented in the legislature, Israel’s Knesset, should have the right to be governed according to their beliefs. That is why we have elections in democracies, to ascertain what the people want and what they don’t.

The key to overcoming these challenges is restoring checks and balances and enabling the people to once again control decision-making and policy determination via their elected leaders and the mechanisms of democracy.

With this in mind, the Religious Zionist Party has written a detailed platform about how to reform Israel’s legal system, something I have been working on for a decade as the founder and legal adviser of The Movement for Governability and Democracy (Meshilut).

The major goals of the program will be to press the restart button on the justice system, implement the necessary changes to empower democratically elected officials and limit judicial activism, protect the institution of democracy and promote an overhaul of Israel’s judiciary system.

One of our solutions to restore balance is that democratically elected officials will comprise a controlling majority on the panel for court appointments. In this way, the composition of the courts will be a better reflection of the will of Israeli society, as in most democratic countries.

Another is that the legal limitations of locus standi will be given formal legal standing. This means that one can challenge a government action or law in court only if he has been directly harmed by that act or law. This will put an end to the court’s excessive judicial activism, whereby the court hears challenges from anyone interested in thwarting government policy.

The courts will also not be allowed to cancel government decisions based on the legal consideration of unreasonableness. This will restore the reins of government to the country’s elected officials and ensure that their decision-making cannot be overturned by the courts at whim.

All of these and many more recommendations, which can be read in English on our party platform on the Religious Zionist website, will return the situation in Israel to the pre-Barak era and in line with the overwhelming majority of democratic countries.

This will make Israel more governable, its judicial system more open and transparent, and above all, make our political system more democratic.

The writer is a member of Knesset for the Religious Zionist Party, a lawyer and a member of the committee for the selection of judges.