A Crisis of Judicial Proportions

 

A crisis of judicial proportions explained, Part I: Reforming the Supreme Court

The proclaimed purpose of the reforms is to correct a decades-old imbalance between the powers of Israel’s aggressive and activist high court and the government. Op-ed.

Alex Traiman

(JNS) For the last several weeks, hundreds of thousands of Israelis have taken to the streets to protest a highly controversial package of judicial reforms being rapidly advanced by the recently installed right-wing and religious coalition led by Israel’s longest-serving prime minister, Benjamin Netanyahu.

In addition to the protesters, economists, businessmen, foreign governments and leaders of the Jewish Diaspora have joined the calls to oppose the reforms. They claim that should the reforms pass, Israel will suddenly be on the road to becoming a fascist dictatorship and that the country is teetering on chaos. Leaders of the protest movement have repeatedly stated that the protests may lead to violence.In certain instances, they already have.

So why was the government rapidly advancing such judicial reforms while protests and domestic chaos among reform opponents were simultaneously brewing at unprecedented levels?

The proclaimed purpose of the reforms is to correct a decades-old imbalance between the powers of Israel’s aggressive and activist high court and the government. For those trying to understand what gives the court in Israel more power than the elected government, it is useful to compare Israel’s judicial system to that of the United States.

No Constitution

Perhaps at the very base of the differences between the Israeli and American legal systems is the presence or absence of a constitution. Israel doesn’t have one. Though less than ideal, it’s not too difficult to understand why. After all, Israel is in its essence a Jewish state. If any other religious group had a set of laws, the list would be numbered with clearly defined laws and their limitations. In the Jewish faith, religious laws are canonized in a 38-volume series of arguments between large rabbinic schools. The rabbis contest with each other over what the laws are and how to perform them.

Furthermore, Israel is a young country that has bounced from one existential crisis to another since the moment of its founding in 1948, in between periods of rapid state-building, often with fractured coalitions at the head of the political system. Simply put, it has been near impossible for Israelis to even think about what a constitution could look like, let alone agree on its formulations. Secular Israelis would want protections for new liberal norms. More religious and traditional Israelis would seek to canonize Jewish values over progressive ones.

In the United States,the constitution provides limits on what issues are justiciable, and the rulings themselves must fall within constitutional boundaries. While there can be some latitude among justices over what the constitution’s authors meant at the time or how the constitution should be interpreted today, there are still constraints.

Everything Is Justiciable in Israel

In the early 1990s, Israel went through a self-proclaimed “judicial revolution” led by then-Supreme Court president Aharon Barak. Barak wanted the Supreme Court to be an “activist court,” meaning that the court would not wait for issues to come to its benches, but rather, the court would increase its power and reach to enforce policy according to its own interpretation.

According to Barak, “everything is justiciable,” meaning that no law, policy or commercial dealing was out of the purview of the court. In cases in which there are no laws or policies, the court can order the parliament to pass a law on a particular issue within a court-stipulated time limit or can order the government to carry out a specific policy.

Standing is Not Required in Israel

In the United States, a plaintiff can only bring a case before the court if they are an injured party. And even then, a case must start in a lower court and advance through a court of appeals before reaching the Supreme Court.

In Israel, a case may be brought directly to the High Court. Further, the plaintiff does not need to have standing. As such, in Israel, NGOs (non-governmental organizations), some of which receive foreign government funding, and are not affected by the issue, are often the parties petitioning the court on any law or policy they want the court to review.

Principle of ‘Reasonableness’

In the absence of a constitution and in a system in which “everything is justiciable,” the court has established its own principle of “reasonableness” to determine whether a law, policy or contract is legal. "Reasonableness" in each case is determined subjectively by the court.

The court has used “reasonableness” to negate laws and to overrule government policies. In addition, court rulings can force a government t take particular actions, including demolishing homes (both Jewish and Arab) that the court rules were built illegally, even when such actions are highly controversial and not politically expedient. The court can also stop demolishment of terrorist homes or limit the area to be dmeolished, even though the military courts have decided differently.

The court has also used the “everything is justiciable” and “reasonableness” combination to overturn commercial contracts, including contracts signed by the government.

Case Study: Noble Energy

A prime example was the court’s canceling a contract signed in 2015 between the government and the U.S. energy giant Noble Energy. Noble was to invest billions of dollars to exploit natural gas off the coast of Israel. The contract signed provided guarantees that Israeli governments would not change regulations for a period of 10 years to guarantee that Noble would make back its investment within that time period.

The court nullified the contract on account of this “stability clause,” stating it was unreasonable in their view to hold future governments to the agreed-upon terms. Noble nearly walked away from the deal altogether, even after it had already invested significantly into the project.

At the time of the ruling, Israeli Prime Minister Benjamin Netanyahu stated” “The High Court of Justice’s decision threatens the development of Israel’s gas reserves.” He added that “Israel is regarded as a state with excessive judicial intervention, which makes it difficult to do business.”

Case Study: Maritime Border Agreement and the court's inconsistency

In addition, the court placed significant limitations on policies Netanyahu could enact during the periods in which he served as a transitional prime minister in the run-up to elections.

Yet just six months ago, transitional Prime Minister Yair Lapid, head of Israel’s progressive left, signed a controversial U.S.-brokered deal to permanently delineate the maritime border between Israel and Lebanon. The deal gave 100% of the contested waters, including the natural-gas reservoirs contained therein to Lebanon in exchange for royalty payments on extracted gas.

The court refused to hear a petition on the legality of Lapid signing such a deal.

Case Study: Forcing Knesset Speaker to Resign

In Israel’s third (of five) consecutive election cycles, Netanyahu was two seats short of forming a right-wing majority. Yet the left-wing and Arab minorities were similarly unable to form a majority coalition.

During the electoral deadlock, left-wing parties sought to advance retroactive bills that would invalidate Netanyahu as a prime minister, one on the basis of term limits, one on the basis of the criminal charges brought against Netanyahu.

Colluding with the anti-Netanyahu opposition, the court ruled that Yuli Edelstein—a Netanyahu loyalist and Speaker of the Knesset—must resign his post so that the 61-seat opposition could assign a new speaker to advance the bills. The ruling was in contradiction of explicit Knesset bylaws that state that a new Knesset Speaker can only be appointed once a new coalition is presented.

In a stunning turn of events, Netanyahu quickly formed a unity coalition with challenger Benny Gantz before the laws could be advanced, rendering the court’s ruling meaningless and soon after forgotten.

These are just a few of several case studies that cause many on Israels right not to trust the court’s judgment.

Self-Selection

At the heart of the tension between the court and the government is the homogenous composition of the court’s justices. The court has been able to keep itself near-uniformly left-wing by the nature of the justice selection process.

In the United States, Supreme Court justices are nominated by the president and then ratified by the Senate. Over the course of time, justices are nominated by presidents of both parties. Oftentimes, the party that controls the White House doesn’t control the Senate. In such a case, the president will have no choice but to nominate a moderate candidate in the hopes of getting the other party to ratify the appointment.

As such, even though the balance of power between liberals and conservatives on the court may swing from one side to the other, the justices basically represent the views of the full cross-section of American citizens.

In Israel, the 15-seat Supreme Court is a largely homogenous body in which most of the justices are descendants of European Ashkenazi Jewry and are unapologetically left-wing liberal. While Sephardi Jews make up more than 50% of Israeli society and are largely responsible for the election of a right-wing coalition, there is only one Sephardi member of the court. There are three religiously observant members(two live in settlements) and one Arab member.

Supreme Court justices in Israel are selected by a nine-member committee. Seven out of nine votes are required for a justice to be approved. The first three members of the committee are sitting court justices. This means that the court has an automatic veto on any candidates it does not want to reach its benches.

The next two members of the committee are members of the Israeli Bar Association. As such, unelected lawyers, who have to appear before these very same judges, have a say in who will be the judges. Together, the justices and the Bar Association typically—though not always—vote in alignment. When they vote together, the two factions hold a voting bloc of five, or a majority of the nine-member selection committee.

The remaining four members of the committee are politicians. They include the justice minister, a second minister in the governing coalition, a Knesset member from the coalition and usually a Knesset member from the opposition.

If a left-leaning government is in power, it’s easy to advance the appointment of a staunchly liberal justice through the committee with a supermajority of seven or eight ideologically aligned committee members voting in concert.

Yet when a right-leaning government is in power, advancing the appointment of a staunchly conservative justice has consistently proven to be much more complicated. In such a case, both sides ultimately need to compromise on a more moderate candidate following rounds of intense negotiations, instead of a right wing one.

Of the 15 Supreme Court justices, four are considered moderately conservative and 11 are liberal. By contrast, there are 70 conservative Knesset Members to 40 liberals. Israel is a right-wing country with a left-wing court.

Attorney General

Last but not least, the justice system has a representative that sits inside the government itself. In the United States, the attorney general is appointed by the president and is a member of the cabinet. While the attorney general retains degrees of independence, they are appointed by the government in power and tasked with advancing the policies of the president. If a new President is elected, the president appoints his or her own attorney general.

In Israel, the attorney general is a professional appointment that serves out a six-year contract regardless of how many governments may come and go during that period. As such, the attorney general may not be politically aligned with the prime minister or the governing coalition. If the attorney general disagrees with a law or policy, then they may issue an opposing legal opinion.

Unlike in the United States, in Israel, the attorney general’s opinion is considered legally binding according to the Supreme Court. Furthermore, each ministry in the government has its own legal advisors. These are also professional appointees, and they report directly to the attorney general. So, there is a mini-attorney general inside each ministry of the government. Their opinions are also binding.

The current attorney general, Gali Baharav-Miara, was appointed by the previous one-year “change” government led by Naftali Bennett and Lapid, which was united only in its opposition to Netanyahu. Now that Netanyahu is back in office, the attorney general has been actively opposing government policies at her own discretion and refusing to represent the government’s positions before the court—forcing the government to hire private legal counsel.

And - instead of the attorney general working for the prime minister, the prime minister is directly answerable to the attorney general. At present, one can argue that the Baharav-Miara is currently the most powerful government official in Israel, despite being unelected, and is effectively behaving as the unofficial chairwoman of the opposition.

The Reforms

The reforms presented by current Justice Minister Yariv Levin and Knesset Law and Constitution Committee head Simcha Rothman seek to reverse the imbalance.

The first is to change the selection process for justices. The government seeks to expand the committee to 11 members, while simultaneously removing the bar association. As such, the coalition would have six members and the lion’s share of weight on the selection committee. While a conservative government could pass a conservative candidate to the court, a liberal government could pass a liberal candidate, and a unity government could pass a moderate candidate.

The next reforms would cancel the concept of “reasonableness,” enforce standing before the court and limit the court’s ability to negate legislation—in particular, Basic Laws.

The Override Clause

Had the coalition stopped there, they may have found greater sympathy among the general public for their reforms. Yet the coalition presented two additional and highly controversial reforms: a notwithstanding clause and a Knesset override.

The notwithstanding concept would enable the Knesset to pass new laws with a specific clause that would prevent the court from being to rule on their legality.

The override clause would permit the Knesset to reverse Supreme Court decisions with a vote. The coalition proposed that a simple 61-seat majority could override Supreme Court decisions. This would give any governing coalition supremacy over court rulings.

Opponents and even many supporters of judicial reform have argued that such revisions swing the balance of power too far in the Knesset’s favor. Even those who would support a Knesset override argue in favor of a supermajority of 70 or 80 Knesset members, which would include members of the opposition.

If both members of the coalition and the opposition believe a court ruling should be overturned, that is a truer indication that the court’s ruling may have gone too far.

Many opponents of the reforms latched onto the simple majority override as proof that the reforms were merely a power grab. That is unfortunate because the override clause drowned out more moderate and meaningful reforms that the political center in Israel would have been more likely to support.

Pausing the Reform Bills

In the wake of the escalating protests that have consumed Israel, Netanyahu has announced that he has paused the advancing of the reform bills. Parties in the coalition and the opposition are now attempting to negotiate an agreed-upon formula for judicial reforms, led by Israel’s President Isaac Herzog.

Based on the rhetoric of both sides leading up to the negotiations, it appears that an agreed-upon formula for meaningful compromise may be difficult to achieve. It is extremely likely that a breakdown in negotiations would lead to a renewed round of further escalated protests.

For the good of the country and for healthy governance, it will be preferable for all sides to reach agreeable—albeit imperfect understandings—and to slowly enact balanced reforms with broad public consensus.