Israel's Judicial Reform: Misunderstanding Democracy

Thoughts on the Israeli government's plans to neuter the Supreme Court

This is jumbled but bear with me.

The most fundamental principle of democracy is accepting that you don’t get to decide.

That sounds backwards. We’re sold democracy as being all about deciding. And it is. But it’s not about YOU deciding. It’s a system that makes it OK that you didn’t decide.

You followed the election, read the materials, chose who to vote for based on what policies you supported. You cast your ballot. But the other lot won. Believing in democracy means means wanting two contradictory things. It means believing that the people you didn’t support should still be in charge and get to implement policies you oppose.

Well, it means those things if you lose. If you always win, democracy can feel like you actually do get to decide and have things your way.

True democracy, though, is more than 51% of the people deciding for the other 49%. In a real democracy, the majority will also have things it wants to do but will be told ‘no’. Laws, constitutions, courts, international treaties… the Rule of Law that acts as a check and balance against the dictatorship of the majority.

If 51% of the population elect 51% of the legislators on a platform of murdering the other 49%, it wouldn’t be ‘democratic’ to start the killings. If legislators pass a law that bans any criticism of the government, or cancels elections, or bans women from voting, a real democracy has speed-bumps, road blocks and full on walls to stop such laws coming quickly into effect.

Democracy is about accepting that you don’t get to decide when you lose. And it’s about accepting that there are things you can’t do even if you win.

We don’t talk about that enough.

Israel’s System of Government

Israel’s system of government is fundamentally a bit of a mess.

The region had been a part of the Ottoman empire for a few centuries before it was conquered by the Allies during the First World War and ended up as a British-controlled territory under a League of Nations mandate. The British brought some elements of English and UK law and governance to Israel, while keeping some laws under the old Ottoman systems.

When Israel declared independence in May 1948, the new country declared in its Scroll of Independence:

…“until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People's Council shall act as a Provisional Council of State, and its executive organ, the People's Administration, shall be the Provisional Government of the Jewish State, to be called "Israel".

Well, October 1948 came and went, and 74 years later Israel still hasn’t adopted a formal written constitution, making it one of just three democracies without one —the others are New Zealand and the UK.

Instead, the first law passed by the provisional council, the Law and Administration Ordinance, declared:

The law which existed in Palestine on the 14th May, 1948 shall remain in force… subject to such modifications as may result from the establishment of the State and its authorities.

Israel ended up with a hodgepodge system of government modelled on the Westminster system of an elected parliament (the Knesset), an appointed government of parliamentarians, and a figurehead president who takes the constitutional role, more or less, of the monarch in the UK.

Unlike the UK, though, Israel opted for a small parliament of only 120 members in a single House.

The United States Constitution was crafted to create a rivalry between the three branches of government (the Presidency, Congress and the Courts), giving each branch powers to check the others and forcing them to cooperate to get things done. In reality those checks have often failed, because the rivalry between the political parties has been stronger than the rivalry between the branches. But the principle was noble enough.

People complain that the system gets logjammed and it can be hard to get anything done, but that’s a feature, not a bug (another thing about true democracies: they’re slow). A President can’t just do whatever he wants. Between two houses of Congress, federal courts and the states themselves, each with their own three branches of government, there are plenty of checks on power.

In the UK, the distinction between the three branches of government is artificial, because sitting at the top of all of them is one bloke with a crown. The government is drawn from the House of Commons itself.

Despite all that, though, in reality the UK has evolved checks on power. The House of Commons is big enough that no government can hope to fully control it. Its Select Committees are proudly independent, with several being chaired by Opposition members. Ministerial question times, weekly Prime Minister’s question time and statements allow MPs from both the Opposition but also the governing party an opportunity to public hold ministers to account.

The House of Lords isn’t elected and it can’t outright block laws but can delay them for a year, or force the government to make changes if it’s in a rush. The courts review government actions and decisions all the time, and occasionally they’ll even find that a law contravenes the Human Rights Act, causing Parliament to change it. And behind all of that is the European Court of Human Rights.

In Israel, the one-chamber Knesset is too small to be independent. Its committees are a joke. Ministerial questions are infrequent and pointless. Debates on legislation degenerate into screaming matches more often than not. The governing coalition usually has complete control over the outcome of every vote. Legislation can and often is rushed through the Knesset with little substantial debate, the entire legislative process sometimes taking mere days from when the government writes the bill. As long as the coalition holds, the distinction between the government and the Knesset seems like merely a formality.

Israel had no formal checks and balances. So it evolved some.

Israel’s Checks and Balances

Instead of writing the promised constitution, the Knesset instead passed constitutional laws called Basic Laws. These law define the workings of the Knesset, the government, and other aspects of the State. Over time, they began functioning a little like a written constitution, and the Supreme Court started treating them like a constitution. Two special Basic Laws — the Basic Law on Human Dignity and Liberty and the Basic Law on Freedom of Occupation — were passed in the early 1990s. These laws contained something like the following passage:

There shall be no violation of rights under this Basic Law 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.

Israel’s Supreme Court understood this clause as giving the Court the mandate to strike down subsequent legislation that violated these two Basic Laws.

The Court over the decades has assumed other authorities. Like most administrative law courts, it reviews government actions for lawfulness; it has also taken the British legal principle of Wednesbury Unreasonableness and interpreted it broadly to block unreasonable administrative decisions by government and its agencies.

The Supreme Court is a court of first instance for public law questions in Israel, and it’s adopted a very broad notion of standing to facilitate access.

All of this has evolved without formal statutes empowering the Court to do these things, in the way that other common-law jurisdictions function.

In response to and in tandem with a powerful court, the legal advisers in every department became a de facto check on executive power. These advisers, independent civil servants, can block government departments from engaging in actions that they believe to be unlawful. The Attorney General in the role of chief government legal adviser has a similar role.

Over recent decades, though, right wing governments have chafed at the restrictions that the Court has imposed on the government’s freedom to act. Since the 1990s, the Supreme Court has been one of the Right’s nemeses. Accused of being far-Left, undemocratic, political and biased, successive right-wing governments have threatened to bring the Court to heel.

With Israel’s pure Right-Religious coalition, that time seems to have come.

The plan

Yariv Levin, the Justice Minister from Benjamin Netanyahu’s Likud party, has been waiting for this moment for years. His plan for “reforming the Justice system” is more wide-ranging than anyone expected and took even his supporters by surprise. It includes:

• Making it much harder for the Supreme Court to strike down laws, requiring a supermajority of an expanded panel

• Allowing the Knesset to re-legislate laws if they are struck down anyway

• Abolishing unreasonableness entirely as a grounds for judicial review

• Making government legal advisers into political appointees instead of civil servants

• Giving the government a majority of votes on the Judicial Appointments Commission

• Giving the Judicial Appointments Commission, with its new government majority, the power to appoint the President of the Court, a role currently awarded based on seniority.

Together, these proposals essentially allow an Israeli government with a bare majority in the Knesset to do whatever it wants.

Choosing Judges

In most democracies, the government doesn’t choose judges. Mostly, there are judicial appointments panels made up of a mix of judges, lawyers, other experts, perhaps some elected officials or their appointees. This process, that prevents governments from appointing tame judges, is an important check on executive power that preserves the independence of the judiciary.

It’s also one of the Israeli Right’s most persistent complaints, usually framed as ‘the judges choose themselves!’ In America, we are reminded, the President gets to choose the judges so why can’t the Israeli PM? The differences in the countries’ constitutional setups aside, the US today is hardly a recommendation for how to ensure an impartial, apolitical Supreme Court with the trust of the public.

All of this is happening while Prime Minister Benjamin Netanyahu is on trial for bribery and misconduct in public office. The proposed changes to the Judicial Appointments Commission will give Netanyahu complete control over the future careers of the judges hearing his case and, if convicted, appeal. Israel had no juries; these are the people who will decide on his guilt or innocence, and he’s making himself their boss.

Guardrails

My flat has a balcony. I didn’t grow up with balconies in my life and it took me a little while to be comfortable with them, but now I happily hang out there, confident that the 1.2m high guardrail is enough to ensure I can’t just fall off.

Once there are guardrails, people adapt, worrying less about risky behaviours because, well, they aren’t so risky anymore. The wall-climber with a harness and a crash mat underneath can reach for smaller and further handholds than if she was climbing untethered. The driving student knows that he can still cause accidents, but that the instructor can help prevent them by braking for him.

When I used to run political campaigns in civil society organisations, sometimes there would be a vote on a motion that we wanted to defeat. Sometimes we won, sometimes we lost, and often there was some unknown third option that popped up at the last minute: the motion got remitted, or taken to parts, or composited with something else that changed its meaning.

The toughest ones to win, though, were the times that the motion was ruled ultra vires ahead of the vote. Some apparatchik would stand up and announce that the motion wouldn’t actually come into effect, but everyone would still get to vote on it.

Those motions always passed. Because what’s the harm of voting for something if there’s no consequences? And often the symbolic victory is more important than the policy win.

Something similar happens in the United States, where states pass outrageous laws without worrying too much about the consequences, confident that the courts will strike them down and save them from themselves.

Some of the most draconian anti-abortion laws, for example, were passed by states where the legislators didn’t have to consider the real harm they might do to women, because they knew that the laws would be blocked under Roe v Wade.

Take away the guardrails and everyone is suddenly behaving dangerously. Roe was struck down, and now multiple states have repressive anti-abortion laws that may never have been passed if they knew they were really legislating and not just playing.

However right-wing a coalition, there will always be a right wing of that coalition. Israeli governments have been able to pander to their right wing by passing laws and making administrative decisions that they know the Supreme Court will strike down, and then whip up their voters about the awful Court. They trusted the guardrails to keep themselves in line.

No more. Now they’ll either have to be responsible and not pass the bad laws, or pass them proudly. My guess is they’ll take the second route but it will be the rest of us facing the consequences. And there’s always someone else to blame. Maybe the media, or NGOs, or the Deep State.

Opposition

The plan to cripple Israel’s justice system is not popular.

Netanyahu and his coalition partners only won about half of the votes in the November 2022 election, scraping a majority of seats when some opposition parties dropped below the electoral threshold. Likud’s election campaign centered on security and the cost of living; Judicial reforms were barely mentioned. With an upswing in terror attacks and Gaza rockets, nobody expected that this would be the government’s single-minded focus.

Even among Likud voters, some 40% oppose the proposals. Among the opposition supporters there is panic, anger and despair.

But there’s also determination. Banks, universities, high-tech firms, judges, lawyers, retired generals, every living former Attorney General, former Likud Knesset members… opposition is growing.

On the other side, the tone of the government is growing frantic, with one Likud Knesset member claiming that the President of the Supreme Court, Esther Hayut, was ‘to blame’ for a terrorist attack that killed two young boys on Friday.

On Monday, the first stage of the judicial reform package — the Judicial Appointments Commission takeover — will receive its First Reading in the Knesset.

To coincide with the debate, a mass protest will be held outside the Knesset in Jerusalem. Campaigners have called for a General Strike, not supported by the trade unions but informal. Many high-tech companies will close for the day, as will university departments.

On Sunday night, just a few hours ago, Israel’s president Isaac Herzog made an unprecedented intervention. Stop and talk, he begged all sides. There could be a more moderate reform that’d fix the guardrails rather than scrapping them altogether. The constitutional arrangements are all a bit of a mess. They could be better. He proposed a few reasonable suggestions.

Opposition leader Yair Lapid quickly accepted the proposal to talk. Justice Minister Levin rejected the suggestion, vowing to push ahead with no delays.

Benjamin Netanyahu didn’t even respond.

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I don’t know how this is all going to play out. There is a level of anger out there that feels new. Opponents of the government believe that this is a systemic attack on democracy. Supporters believe it’s an essential step in rooting out the traitors and Leftists.

This is how democracies die. It always starts with the judiciary. Turkey, Hungary, Poland… it’s a playbook by now.

Next comes the media, usually, which Netanyahu supporters already call the “propaganda channels” because “fake news” was taken. Or the civil service, which is already in the firing line.

I’m just hoping that the scale of the opposition will make someone reconsider, someone take a step back and ask if this is really the path they want to choose for the country.

I keep coming back to the same, depressing thought: you don’t pass laws giving the government untrammelled, unreviewable power unless you’re pretty confident you’re never going to be in the opposition, on the receiving end of that power, again.