To my mind, these modest reforms seem sensible and probably overdue for Israeli democracy.
I discuss the four important aspects.
1. Judicial review
Like the UK, Israel has an unwritten constitution. It's based on the principle of Parliamentary sovereignty, not checks-and-balances. The body of law passed by the UK Parliament is considered its constitution. What is very striking about the Israeli Supreme Court is the warped equilibrium of power, for example when compared to the UK Supreme Court. Unlike the UK, Israel is still a relatively nascent state and has not really had its equivalent of the Glorious Revolution of 1688. Rather than centuries, it has had decades. During which, the Israeli judiciary have arrogated extraordinary power to themselves in a manner that strikes me as being incomparable with most liberal-democratic courts.
In Israel, in the 1990s, the Supreme Court underwent a "judicial revolution" and arrogated to itself the power to strike down legislation (The Economist summary). The court rationalised this power as being conferred upon it by the "Basic Law" (which requires a majority and which can be overridden).
However, in the UK, we have the enrolled bill rule. Famous cases (e.g. British Railways v Pickin) have established that no English court may question the validity of an Act of Parliament. All that an English judge can do is to observe that an Act of Parliament has passed the various stages; and then interpret and apply the law. The Human Rights Act 1998 gives the courts a discretion to issue a declaration of incompatibility – but, beyond that, the courts cannot impugn primary law. In contrast, the Israeli Supreme Court would decide what constituted the "Basic Law" implicitly by deeming the primary law unconstitutional. This strikes me as a reversal of Parliamentary sovereignty, and would be anathema to any British judge.
The proposed changes to the Israeli courts are rather generous to them. They propose to endow the courts with the power to 'judicial review' legislation passed by Knesset if: firstly, it is before a full bench and, secondly, there is a threshold of 80% to rule in favour of invalidation.
This is significant because it relates to the concept of legitimacy. Modern democratic constitutions derive their legitimacy from the people who elect them. This is important because representative politics gives voice to disparate interests (in policy trade-offs and debates) which affirms the willingness of the electorate to comply with the resultant laws. It is the collective instinct we have to accept the inherent authority of institutions and to have a political process that can best wrestle the conflicting interests and opinions.
An expansive judiciary strikes at the heart of the legitimacy of the law-making institutions in a deep and profound sense. Indeed, every democracy has to rebuff with the problem of idealists imposing beliefs on others. Judges are not constitutionally accountable to the electorate and do not have to weigh the various interests and seek compromises.
Democracy is a sophisticated political relationship that requires – not a set of beliefs but – a disciplined ways of thinking as to who is the most qualified to have the final say in our constitution; the voters who elect governments, or the appointed judges? Moving forward, the direction that the Israeli courts take will depend on how judges, lawyers, and politicians perceive the political process and the broader limits of law.
2. Knesset override
The changes would allow the Knesset to overrule a decision of the Supreme Court on the legality of legislation.
There should be nothing controversial here: either elected or appointed; democracy or elitism. I think it's that simple. In English law, the classic example is Barker v Corus. Parliament enacted the Compensation Act 2006 which effectively reversed the ruling of the House of Lords.
3. Reasonableness
As a result of case law in the 1990s, the standard adopted was the "reasonableness" in evaluating government political appointments and to strike down national policy. In the UK, we take the exact opposite approach. The English judiciary have traditionally regarded certain policy-based prerogatives as being non-justiciable. I think this is extremely important because (as already mentioned) it affirms the legitimacy of the political process and our democratic principles.
The proposals preclude the Israeli courts from hearing appeals against the government on the basis that such decisions were 'unreasonable'. This strikes me as being quite sensible. In English law, the relevant equivalent in principle is referred to as Wednesbury unreasonableness. As a matter of practice, it is almost never used because - aside from very rare exceptions - it is ultimately arbitrary and based on what the judge feels is reasonable. That the Israelis put up with being told what is "reasonable" (and how so) from their Supreme Court is quite laughable.
4. Judicial appointments
The proposed changes would alter the composition of the 9-member judicial appointments committee (JAC), and this is:
- 3 sitting Supreme Court Justices
- 2 representatives of the Israel Bar Association
- 2 lawmakers
- The Justice Minister
- 1 additional Cabinet Member
In the UK, we have an independent JAC with judges and barristers represented on it. The remit of the English JAC is to appoint judges on the basis of their legal merit and expressly not political. Our English judges are always apolitical and I suspect it flourishes because of a deep respect for the constitutional boundaries between interpreting and creating law (as above). Israel may not be able to arrive at such a state of affairs, and judicial appointments may well be subject to different governments with different views. Given the direction of the Israeli courts, it is probably inevitable reality in its future evolution.
All-in-all, I think the reforms are pretty good and sensible.
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