Israel's judicial reforms weaken democracy - opinion

The time has arrived to devote some months to drafting and adopting a written constitution, which is the only democratic way for Israel to reform.

 PRIME MINISTER Benjamin Netanyahu sits alongside sacked cabinet minister Arye Deri in the Knesset, on Monday. In Israel, the coalition controls the legislature and executive, thus the need to keep its hands off judicial appointments, says the writer.  (photo credit: YONATAN SINDEL/FLASH90)
PRIME MINISTER Benjamin Netanyahu sits alongside sacked cabinet minister Arye Deri in the Knesset, on Monday. In Israel, the coalition controls the legislature and executive, thus the need to keep its hands off judicial appointments, says the writer.
(photo credit: YONATAN SINDEL/FLASH90)

In April 2017, Turkey passed constitutional amendments that, most famously, changed its government from a parliamentary to a presidential system. What received less notice were the changes made to the process of appointing judges and prosecutors. Turkey, like Israel, has a national committee that appoints judges. Previously the committee had been composed of a two-thirds majority of sitting judges and prosecutors. After the 2017 constitutional amendments, the president and the parliament controlled that committee.

As a result, judges now due the bidding of the ruling party, for instance, voiding the Istanbul mayoral elections of 2019 after an opposition candidate won and when the opposition candidate won a second time, putting him on trial for phony criminal charges.

In Turkey, changing the composition of the appointment committee for judges destroyed judicial independence and gravely weakened Turkey’s democracy.

Supporters of Justice Minister Yariv Levin’s reforms, such as former United States ambassador David Friedman in his The Jerusalem Post article on January 20, rightly note that there are equivalents for them in well-established democracies. For instance, in the US, the process of appointing judges is controlled entirely by politicians.

Other democracies have safeguards for checks and balances. Israel doesn't

What Friedman and others don’t mention, however, is that in those other democracies, there are other safeguards, often constitutional ones, that ensure a balance of power between the branches of government and therefore independence of the judiciary.

 US SUPREME Court justices pose for a formal group photograph, in October. (credit: US Supreme Court/Reuters) US SUPREME Court justices pose for a formal group photograph, in October. (credit: US Supreme Court/Reuters)

In the US, for instance, judges are confirmed by the upper house of the legislature, which can be controlled by a different party than that of the president.

In Israel, the political party or coalition of parties that control the unicameral legislature also controls the executive and thus the need to keep its hands off of the judicial appointment process so it doesn’t also control that branch of government.

Democracies like the US and Great Britain have hundreds of years of established constitutional precedents and redundant systems to support the checks and balances between branches of government. Israel’s democracy is much closer to Turkey’s in its newness and lack of long-established constitutional checks and balances, thus fiddling with the composition of a judicial appointment committee can quickly change the balance of power and rob the country of judicial independence.

I am as exasperated as anyone with the superficial warnings heard in the media that democracy is about to fall whenever a right-of-center government wins an election. Israel does need judicial reforms to make the judiciary more accountable to the democratic wishes of its citizenry. But cherry-picking measures to strengthen the ruling party at the expense of the judiciary, without taking a holistic look at the checks and balances in the system, is more destructive than constructive.

What this crisis reveals is that Israel needs a constitutional convention and a process to adopt, 75 years into the state’s existence, a constitution that can deepen and operationalize the soaring principles of Israel’s Declaration of Independence. There were good reasons for avoiding such a process in the first 75 years, with Israel surrounded by enemy states on its borders.

Now, however, the time has arrived to devote some months to drafting and adopting a written constitution. That is in fact the only truly democratic way to address the need for reform of the balance of power between branches of government in Israel.

The writer is a lecturer at Shalem College, a senior fellow at the Jerusalem Institute for Strategy and Security, and managing editor of The Jerusalem Strategic Tribune. He is a former US diplomat and president of the American Foreign Service Association. Twitter @silverrj99