Fact-checking the government's claims in favor of judicial reform - opinion

To allow a coalition to pass any law it chooses and to be able to override the Supreme Court in every case is simply going too far.

 PRIME MINISTER Benjamin Netanyahu addresses the Knesset plenum. ‘The executive sits in the legislature and dominates it.’ (photo credit: YONATAN SINDEL/FLASH90)
PRIME MINISTER Benjamin Netanyahu addresses the Knesset plenum. ‘The executive sits in the legislature and dominates it.’
(photo credit: YONATAN SINDEL/FLASH90)

The current effort by the new government headed by Prime Minister Benjamin Netanyahu to limit the Israeli courts’ ability to review the legality of Knesset and executive decisions has generated strong opposition from the Center-Left. The Right is justifying its efforts to neutralize the courts with several arguments that they feel are objective reasons and valid support for their efforts. I would like to fact-check their claims.

First, however, some background. An accepted norm in modern democracies is a system of government with three branches: executive, legislative and judicial. Israel is an exception to this norm in that it effectively has only two branches: executive and judicial. Superficially, it has three, as it has a parliament; however, the executive sits in the legislative and dominates it.

After an election, the two dominant parties elected to the Knesset compete to form a ruling coalition. The leader of the party that forms the coalition is then elected prime minister. Once a coalition is formed, no legislation submitted by the opposition is passed into law. If such a law is passed, the coalition fails and new elections are declared.

Similarly, within the ruling coalition, only that legislation supported by the executive (prime minister and party heads sitting as cabinet members) is passed. The only decision the Knesset makes on its own is who is in the ruling coalition. Once the ruling coalition is elected, the executive, made up of the prime minister and the coalition members (cabinet) rules the legislature.

An example of the executive’s control over the Knesset is party discipline. When prime minister Yitzhak Rabin brought the Oslo Accords to the Knesset for approval, he didn’t have a majority supporting it. Several members of his Labor Party and some in the coalition opposed the agreement. Rabin and other party heads imposed party discipline and the agreement passed.

Oslo Accords (photo credit: Wikimedia Commons)Oslo Accords (photo credit: Wikimedia Commons)

The reason why party discipline is such a strong tool is that Israelis don’t vote directly for members of the Knesset. Instead, we vote for a party and it’s the party that selects candidates for the Knesset. A backbencher challenging the party leadership will find themselves stripped of a committee and other juicy appointments and come to the next election in an unrealistic position on the party’s election list.

Fact 1

Who should serve as a check and balance of the executive? Israel’s courts have offered themselves as supervisors of the executive, ruling whether laws passed by the coalition or regulations passed by the executive are legal. The current effort to limit the courts’ judicial review authority is an effort to remove supervision of the executive.

One rationale supporting this effort that has been made is that no law specifically authorizes the courts to play that role and that the courts have asserted that role to themselves: an assertion without precedent either in Israel or elsewhere.

The US Supreme Court exercises judicial review in the US, and Americans accept the court’s authority to do so. However, there is no provision in the US Constitution for such authority. The authority of the courts to review legislation and executive regulations was established in Marbury vs Madison, in 1803.

In that ruling, the Supreme Court established itself as the arbitrator of whether or not legislation from Congress or the states was constitutional and whether or not regulations by the executive were constitutional or in keeping with congressional legislation. I would assume that at that time there was opposition to this assertion of authority, but over time it has become accepted and Americans today take it as a given.

Therefore, I rate the claims that such an assertion by Israeli courts is without precedent in Israel or elsewhere as false.

Fact 2

A second justification by the Right is that a pillar of democratic rule is that the majority rules on all issues and a majority of Israel’s voters have voted for the coalition parties. Of the 6,788,804 Israelis eligible to vote, 4,794,593 cast votes (70.36%), of which 4,764,742 were properly cast. Of the total votes cast, the coalition parties plus Ayelet Sheked’s party received 2,361,739 or 49.26% of the total votes cast. Without Ayelet Sheked’s party, the votes received were 2,304,964 or 48.07% of the total vote.

In no scenario does the coalition pass the 50% mark of total votes cast. The coalition received a majority of the seats in the Knesset because of the way the election math is calculated – and not because the coalition members crossed the 50% barrier.

Hence, I rate the claim that a majority of Israeli voters in the November 2022 election voted for parties supporting the reforms as false.

Fact 3

That leaves the notion of majority rule as the pillar of democratic rule. A survey of democracies both in Europe and the Americas shows that majority rule is actually limited in democracies, with the rights of minorities protected against majority rule. The majority rule allowed slavery in America and later, the Jim Crow laws. When Saddam Hussein of Iraq was hanged, the Sunni leadership called for Iraq to follow Sunni laws, since Sunnis were the majority.

Given that the laws projecting minorities and unpopular views are generally protected in nations accepted as democracies, I rate the claim of absolute majority rule in a democracy as false.

Fact 4

The reformers have also called for the selection of judges to be changed, charging that in the current system, the existing body of judges simply replicates itself over the generations. Per this claim, the current system of appointments doesn’t allow for a gradual change in the philosophy of the courts, alienating those who don’t share the court’s philosophy on the issues of the day.

Instead, the reformers want the political leadership to select candidates for the courts, in part because the political leadership is publicly chosen and changes with the times, more closely reflecting the views of the general population. Opponents have laid the claim that this will politicize the judiciary and lead to executive control of the courts, as well as the Knesset. 

Assessing these competing claims is less about facts and more about personal social and political philosophies. Hence, any rating will reflect my own philosophies. That said, I rate the claims by both sides partly as true and partly as false.

My problem with the above is that I agree with the reformers that the current system of jurist selection doesn’t allow for the introduction of a countervailing view into the courts over time. I also agree that society changes over time and the courts need to change with it. However, I disagree with the idea of the executive having an unfettered choice of judges to sit on the courts, given the impotence of the Knesset opposite the executive.

As an American, I am familiar with a jurist selection process that begins with the executive nominating candidates to the courts and the legislature, via the Senate, confirming or rejecting the nomination. If Israel’s Knesset were truly independent, I would agree with the reformers on this one. The difference between the US Congress and Israel’s Knesset is the direct election of the Congress.

In the American system, Congress is responsive to the public and less so to the executive. House representatives and senators often challenge their own party’s policies and vote against the party line and survive politically, but not so in Israel.

Interestingly, Islamic tradition prohibits heads of state from interpreting Islamic law. The rationale is that a national leader will interpret Islamic law to suit his interests. That is, national leaders have a conflict of interest in interpreting the law, which is intended to regulate their behavior, as well as that of the general public.

Just as a kashrut supervisor cannot certify his own kitchen as kosher, a national leader cannot interpret the very law that is intended to regulate his behavior. Given the impotence of the Knesset opposite the prime minister, the current system of appointing judges is the lesser evil. If at such time we move to direct elections and establish a more independent Knesset, we can revisit the issue of how judges are appointed.

As a final comment: the coalition wants to pass a law requiring a super-majority for the court to overturn a Knesset law while requiring a minimal majority (one vote majority) for the Knesset to override a court decision. The notion of a super majority is found in the laws of a number of democracies (Canada, Australia, Denmark, Finland, etc.) such as a three-fourths majority of states to amend the US constitution.

I could support the authority of the Knesset to overrule a Supreme Court ruling if doing so required a super-majority, such as two-thirds or 80 votes. This would require support from the opposition, as well as the ruling coalition. To allow a coalition to pass any law it chooses and to be able to override the Supreme Court in every case is simply going too far.

The writer is the deputy chair of the Division of Business Administration at Touro College Israel.