Leading opponents of the judicial reforms proposed by Justice Minister Yariv Levin have, with the assistance of a fully enlisted media, sanctimoniously cloaked themselves with the mantle of the protectors of democracy and have refused to engage in any serious, open-minded discussions. Their hysterical and unfounded claims about the reforms, threats of violence and civil uprisings, calls for shutting down the country and horrific comparisons to the Nazis, belie any fidelity to democratic norms and principles.
Rather, their actions and dangerous rhetoric smack of an elitist and fair-weather view of democracy. They cherish living in a democracy but only when their side wins elections or if the system provides an insurance policy that allows them, even when their side loses, to direct the policies and agenda of the Knesset and the government in accordance with their worldview.
That fallback protection was acquired in 1995 when Aharon Barak, the president of the Supreme Court at the time, created a constitution out of a 1992 law, Human Dignity and Freedom, that passed with only 32 votes. That law provides that, “there shall be no violation of the life, body or dignity... [or] property of a person... except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required.”
Barak persuaded a generation of Israelis that a law passed by just a quarter of the Knesset constituted the core of Israel’s constitution and that the Supreme Court has the power to strike down Knesset legislation in all facets of life if in the court’s view, it clashed with the Human Dignity and Freedom law.
The adoption and ratification of national constitutions are lengthy and much-debated processes, involving the active participation of the country’s citizenry and legislature in arriving at a consensus and, once adopted, provide the legislature and government with clear guidelines and standards. But not so in Israel.
It is obvious that both the limitation section of the Human Dignity and Freedom law, as well as each of the exceptions, are extremely ambiguous and subject to a wide range of interpretations. The determination by Barak that an amorphous law passed by a small minority of the Knesset is the highest law of the land and that the Supreme Court has the authority to set aside any government or Knesset action that it deems to be in violation of the Human Dignity and Freedom law, transformed the Supreme Court into a supra legislative and executive body.
The power to legislate was, effectively, transferred from the elected representatives of the people to judges chosen by a small committee. And sitting on this committee are Supreme Court members who veto any new appointee not to their liking.
Supreme Court power
THE POWER of the Supreme Court to mold legislation goes far beyond the self-conferred authority to annul laws of the Knesset. Its influence starts as soon as a bill is first taken up by the government or the Knesset. The positions of the attorney-general to the government and the legal advisers to the Knesset and government ministries are, for the most part, filled by lawyers who share a world view that aligns with Barak’s and it is now an increasingly common occurrence that laws proposed by Likud led governments are aborted at early stages because of purported “constitutional defects.”
For example, earlier this month, 89 Knesset members voted in favor of a bill that would allow for the removal of citizenship or residency from a convicted terrorist who receives money from the Palestinian authority. But the bill’s passage is in jeopardy because of objections from the attorney-general.
When Barak announced his post facto interpretation of the Human Dignity and Freedom law, Michael Eitan, a Likud MK at the time, described what happened the night of the vote. “Two laws were brought to the vote with less than half of the House members present... Nobody mentioned that this was a constituent assembly, nobody spoke about a revolution and nobody said that a constitutional change was underway. They voted... Only after the fact was it informed of the revolution... Those Knesset members who perhaps knew that this was a far-reaching step, deliberately concealed the information from the rest... This is how you build a constitution? Why was it necessary to deceive the members of the Knesset?”
Barak’s total disregard of legislative intent or of the process by which all other countries adopt constitutions demonstrates his belief that checks and balances apply only to the executive and legislative branches of government but not to the judicial branch. The strident opponents of judicial reform share this anti-democratic notion.
Was Israel not a thriving democracy with a respected and independent Supreme Court before 1995? Is there no shame in earnestly postulating that Israel will cease to be a democratic nation, that it will become a dictatorship, a one man-rule, if limits are placed on the power of the Supreme Court to annul Knesset legislation, a power never granted it by the Knesset in the first place? It is most ironic and entirely overlooked, that the judicial reform legislation will actually, for the very first time, provide legislative imprimatur to the power of judicial review.
Of the many lawyers, company CEOs and Nobel and Israel Prize winners who have expressed outrage at the core of the judicial reform bill, who would like to step forward with similar contempt and self-righteousness and accuse the UK prime minister of being a dictator and Britain of being a dictatorship, since its courts lack any power to nullify laws of Parliament? Would any of them conceive of asserting that English judges are not among the most respected and influential in the world but rather are powerless and not independent? Would it occur to them to warn of the evils, dangers and instability of England’s centuries-old parliamentary system, perhaps the world’s longest-running democracy?
ONE WOULD expect all those well-educated and highly credentialed legal, business and political leaders who charge that Israel will become a dictatorship if it provides only a limited form of judicial review, to similarly challenge the democratic bona fides of The Netherlands that has the following article in its Constitution: “The courts may not examine if a statutory provision is in conformity with the Constitution. The constitutionality of Acts of Parliament and Treaties shall not be reviewed by the courts.”
Does anybody honestly believe that, without the hysterical warnings from within Israel, investors outside the country would have had the slightest interest in the conditions under which Israel’s Supreme Court could annul Knesset laws or in the proposal to add two additional politicians to the committee that appoints judges instead of members of the Israel Bar Association?
Do British and Dutch lawyers, business leaders and academics warn overseas investors that they would be making a mistake putting their money in the UK and in Holland, the way their counterparts in Israel have done? Will those companies that have pulled money out of Israeli banks make sure not to place those funds in British and Dutch banks?
By the same token, since the election of federal judges in the United States is entirely political – every federal judge is appointed by the president of the United States with the consent of the US Senate – will they also keep their money out of banks in the US?
There can be legitimate arguments about various elements of the judicial reform but maligning the country and inviting economic pressure from the international community to hold on to political control and further a political agenda is a shameful form of BDS. Professed concerns about the tyranny of the majority should not serve as a cover for the tyranny of a minority.
The writer is an attorney in Israel and New York.