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Tiptoeing into Israel's judicial minefield
Misleading and hysterical reporting has ignited a dangerously incendiary atmosphere
Seven senior British lawyers have taken it upon themselves to issue a document explaining the role of the UK courts as a contribution to Israel’s debate over its contentious judicial reform package.
If these lawyers really wanted to improve the store of knowledge on which the debate in Israel is being held, this seems a baffling way to go about it.
First of all, the language of this document, entitled The Constitutional/Legal Structure of the United Kingdom: A Response to Claims Made by Proponents of the Current Proposed Changes to the Constitutional/Legal Structure of Israel, is remarkably pompous. This is how it starts:
We, the undersigned, have had it brought to our attention that persons interested in current Israeli constitutional reform efforts have prayed in aid certain alleged features of the United Kingdom’s constitutional arrangements.
Who on earth speaks like this? The authors have produced a caricature of legalese as might have issued in the 19th century from the satirical brain of Charles Dickens. Since this would put off even native English speakers, how is it supposed to appeal to the Israelis?
As for the content, while the English lawyers scrupulously avoid taking sides in Israel’s near-civil war by merely stating the UK situation, the internal logic of the document inescapably suggests a belief by the authors that the judicial reform package is wrong-headed, and that its proponents have made false comparisons with the UK courts to sell its message.
In fact, these lawyers end up inadvertently making the Israel government’s case for it.
They say of the UK’s system:
To the extent that these features are seen as material to legislative deliberations in the Knesset, we believe it important to clarify how these constitutional arrangements operate in both law and practice.
In Britain, Parliament is sovereign. That means the courts don’t have the power to strike down laws passed by parliament. Achieving that restriction is the principal aim of Israel’s judicial reforms. It proponents have said more than once — in response to claims that that the reform package will destroy democracy in Israel — that it merely brings Israel into line with the UK on that particular point; and that in relation to the proposal to give politicians majority power over the selection of judges, it merely brings Israel into line with America.
This claim of similarity to the UK has clearly upset the seven English lawyers. And indeed, there are significant differences between the two countries in that the UK has constitutional checks and balances to temper executive power which Israel lacks. However, the lawyers’ clarifications are distinctly off-beam.
It is frequently believed abroad that since the United Kingdom’s courts affirm the legal doctrine of the legislative supremacy of Parliament, that the power and role of the law courts is irrelevant to public policy making. This claim does not reflect the true structure of the British constitution.
But no-one has claimed that the UK’s courts are irrelevant to public policy. Nor has anyone said the intention of the judicial reforms is to make the Israeli courts irrelevant. Just as in Britain, they will continue to be able to hold the government to account for its actions. What they won’t be able to do is strike down laws passed by the Knesset — unless the law in question “clearly” violates an order “entrenched” in a Basic Law.
The English lawyers then state correctly that the UK courts can declare laws incompatible with European human rights law. They say that this
imposes a strong duty upon courts (and others) to do what they can to interpret all legislation in a way which protects human rights, including by giving it a meaning that is an unambiguous departure from the meaning Parliament intended when enacting it.
True. But so what? The crucial word here is “interpret”. The UK courts can declare acts of parliament incompatible with the European Convention on Human Rights. The resulting pressure on the government means it either changes the law or tweaks it to satisfy the European human rights court. The crucial point, however, is that the judges cannot themselves strike down the offending law. The courts don’t usurp the sovereign law-making power of parliament — the key point of the Israeli reform package.
Next, the English lawyers observe that the UK courts can also use the common law to provide a “potent restraint on executive power”. True; but again, so what? The Israeli courts will continue to be able to hold ministers to account for their actions, just as the courts can in the UK.
True, the Israelis don’t have European human rights law to call upon. It is an article of faith among the British legal establishment that human rights law is an essential safeguard for British liberties against the potential depredations of the government.
But this is a deeply contestable view. Britain invented liberty and democracy centuries before the UK became a signatory to European human rights law. And the operation of human rights law in the UK is itself deeply contentious, with concerns that it has given rise to “judicial supremacism” and attempts by the judiciary to confuse law with politics — precisely the argument made by Israel’s judicial reformers.
Next, the English lawyers declare:
Hence, allegations that courts in the UK have no review power in the constitutional sphere are false.
But no-one said they had no such power. The courts constantly subject administrative decisions to judicial review. This is a straw man argument, which appears to muddle judicial review with the power of the courts to strike down laws passed by parliament.
In fact, all these English lawyers have succeeded in doing is showing how the UK courts are able to exercise significant influence in the public policy sphere without having the power to override legislation passed by parliament — precisely the situation envisaged by Israel’s judicial reformers.
The lawyers appear to be implying that the Israeli proposals will denude the Israeli courts of powers. But that is false. The reform package is designed to remedy the current anti-democratic situation where there are no checks on the court and which abuses its powers as a result. There have been many examples of this. The court has used double standards to disadvantage Israeli Jews and advantage Israeli Arabs; other rulings have undermined the county’s security by tying the hands of the security forces. Such rulings appear to owe more to an ideological predisposition than to any law.
At the Kohelet Foundation, lawyers Aharon Garber and Avraham Shalev write:
The Supreme Court has invented new legal grounds to review the reasonableness of government actions and even to disqualify government appointments. It has adopted interpretations that allow it to veer from the law and the legislator’s intent. It has created new powers ex nihilo in order to strike down laws by virtue of the Basic Laws, after it declared on its own authority that the Basic Laws are a constitution – the sole such case in the world. As of late, the Supreme Court judges have begun advancing the idea that they are authorized to interfere even in the Basic Laws themselves or to strike down legislation by virtue of principles that do not appear in law – ideas that are completely rejected in other democratic countries.
Moreover, while the reforms aim to curb the excessive powers of the court, in other respects they will actually strengthen them. As history lecturer Gadi Taub has written, the package will
legitimise the power grab in which the court declared Israel’s Basic Laws to be articles of a constitution-in-the-making, by granting them constitutional status and legalising judicial review of laws based on these Basic Laws.
Law professor Avi Bell agrees, writing that the reform package
would give the Israeli Supreme Court explicit statutory authorisation to overturn legislation
ratify some of the Court’s seized powers, while also reining in its gross overreach.
The proposals have ignited not just massive protests in Tel Aviv and Jerusalem but also repeated incitement to violence. This dangerously incendiary atmosphere has been incited by hysterical and misleading reporting and commentary. It is also astonishing that the Israeli government has failed to publish a comprehensive account of the details of this highly complex package of proposals in terms the public can understand.
It’s hard not to conclude, however, that this mass hysteria is in large measure the rage of the left — who have lost political power among the public — at losing the considerable power they have been able to wield through their ideological avatars in the judiciary.
But there is also deep concern about these proposals among many who are not on the left. They may agree that there’s a problem of judicial overreach, but they are frightened that the proposals will give unbridled power instead to the government of the day.
Certainly, Israel’s political system lacks necessary checks and balances. And certainly there’s a need for compromises on details of the reform package, such as the percentage of the Knesset needed to override court rulings and the need to bring an element of non-political independence into the composition of the panel that selects the judges.
It’s therefore beyond unfortunate that opponents of the judicial reforms have refused to take up offers of compromise. The reformers have repeatedly said they want to hear such proposals, but the opposition leader Yair Lapid has equally repeatedly turned down all offers of talks. On Tuesday evening he rejected the offer by prime minister Benjamin Netanyahu to negotiate without preconditions. JNS.org reports:
Lapid last month called on President Isaac Herzog, whose role is that of national figurehead, to set up a committee to recommend a “balanced” plan to reform the judiciary. In response, the president two weeks ago presented five principles as “a basis for immediate and decisive negotiations that will arrange the relations between the government branches.”The following day, Justice Minister Yariv Levin and Knesset Constitution, Law and Justice Committee chairman Simcha Rothman urged opposition leaders to meet at the President’s Residence in Jerusalem to discuss the reform program. Lapid rejected that overture as well.
However, it is for Israel alone to resolve all this. It is no-one else’s business. Lawyers and others abroad should stop interfering, lecturing and hectoring on basis of either ignorance, animus against Netanyahu or their deeply held ideological belief that the rule of law means rule by lawyers, and show some humility and respect for Israel’s right to govern itself.
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