ISRAEL JUDICIAL OVERHAUL: EXPOSING THE MYTHS

 

ISRAEL JUDICIAL OVERHAUL: EXPOSING THE MYTHS

Oshy Tugendhaft

 

“The first thing we do is, let’s kill all the lawyers”.  So proposed, Dick the Butcher, in William Shakespeare’s Henry VI.  Often misinterpreted, the context in which Dick utters this phrase is key to its true meaning, that society could not exist in a state of fairness, peace and justice without the protectiveness of both the law and its staunch guardians.  Dick is suggesting that for their coup to prevail, they must eradicate society of the very defenders of justice who could prevent the revolt he intends to promote and then remove the power he would seek to usurp.  USA Supreme Court justice, John Paul Stevens, shared this reading of the line, in a 1985 decision:

“As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of Government.”

The objective of the Israeli Government’s “judicial overhaul” is to “kill the judges”.  It is designed, firstly, to give the ruling coalition an overriding say in the selection and appointment of judges, and secondly, to significantly circumscribe the Supreme Court’s power to review laws passed by the Knesset.

But, in an effort to stifle criticism of its reform proposals, there are two myths which have been perpetuated by Netanyahu and his Government, designed to mislead the Israeli population and Jewish supporters of Israel in the diaspora.

The first myth is that the judges appoint themselves. The second, is that a democracy requires that the will of the majority, which is represented by the elected majority in the Knesset, should not be frustrated by the decision of a Supreme Court, comprising some 15 judges, who are not elected by the people, which, so they contend, is the antithesis of democracy. 

We need at the outset, to expose these myths for what they are.

The judges do not appoint themselves.  Israel has a judicial selection committee comprising the following 9 members:

·       The Minister of Justice, Chairman of the Committee;

·       The Supreme Court President;

·       two additional Supreme Court justices;

·       an additional Minister;

·       two Knesset members;

·       two representatives of the Israeli Bar Association.

Accordingly, 4 of the 9 members are appointed by the Government, 3 by Supreme Court judges, and 2 by the Israeli Bar Association.

Judges of the lower courts are appointed by a majority ‑ 5 out of 9 ‑ of the members of the Judicial Committee. The appointment of a judge of the Supreme Court, requires a majority of 7 of the 9 members of the Judicial Committee. 

The Supreme Court, being the highest court in the land, is the ultimate judicial body, responsible for reviewing legislation of the Knesset.  Contrary to the false narrative perpetrated, therefore, the representatives of the Government have an absolute veto regarding the appointment of any judge of the Supreme Court.  No judge of the Supreme Court can be appointed without at least 2 of the 4 representatives of the Government on the Judicial Committee supporting that appointment, even if that appointment is supported by all 3 justices and the  2 representatives of the Bar Counsel.  Similarly, the 3 justices also have a corresponding veto right.  That, I would suggest, is a most balanced and equitable system. To contend, therefore, that the judges appoint themselves is a misrepresentation of the true facts.

The second myth is even more egregious.  It garners support in the thesis that because the judges are not appointed by popular vote, they are not truly representative of the will of the majority of the population.  In contrast, a government which holds a majority in the Knesset, maintains that it is representative of the will of the majority, and therefore, when it enacts important legislation, the Supreme Court should not have the power to strike down and invalidate that law, on the grounds that it is unconstitutional or lacks rationality.  But that, precisely, is what a liberal democracy demands.  One of the fundamental roles of such a Court, is to enforce the rule of law and hold government to abide by that rule of law.

What the Israeli Government is seeking to enact, are revolutionary changes to judicial oversight. At present, and for the past 30 years, the Supreme Court has the power, by majority vote of the Court, to invalidate laws which offend constitutional values or the rule of law. The Government’s proposal is that the Supreme Court will only be able to invalidate a law when it sits as a full bench of 15 judges, and when 12 out of the 15 determine that law to be unconstitutional (in the second proposal it has been suggested that such a decision would require unanimity).  But the proposed changes go even further.  In the event of the Court striking down any legislation on the grounds that it is unconstitutional or unreasonable, the Knesset, by a simple majority of 61 out of 120 members, would have the right to override such a decision of the Supreme Court.  The Government would thus arrogate to itself the unlimited power as final arbiter and judge to determine the validity of its own laws.  In short, even if the Supreme Court declared such a law to be invalid, the Government could override and invalidate that decision.  If that untrammeled power is not enough, it goes even further.  During the legislative process, if the Government determines that a particular piece of legislature is a Basic Law, it can in advance preclude the Supreme Court of exercising any jurisdiction at all regarding the validity of that legislation and so preemptively shield it entirely from judicial review.

The objective is clear.  The ruling coalition in the Knesset must have absolute power and the Supreme Court, which has historically at least since 1992 served as the only and ultimate check on that power, must be emasculated and neutralized.  Besides controlling the appointment of the judges of the Supreme Court, the Knesset would reign supreme, and it would even be beyond the power of the Supreme Court to review any legislation which the Government by simple majority declares to be a Basic Law. 

It is not only dictatorial regimes that may seek to weaken the review power of courts in respect of important legislation and executive action. It will often be attractive to a democratically elected government, to believe that because it enjoys electoral majority support, it is axiomatic that the laws it enacts are necessarily in the best interests of the country and its people and should not be capable of being assailed by a court, whose judges are not appointed by the same process.  However, in every liberal democracy, there has always been an adherence to, and recognition of, the fundamental principle of the separation of powers, which prescribes, amongst other things, that the highest court of the land has to be instrumental in placing a check on the actions of that government, derived from the rule of law.

Without that fundamental separation of powers and the residual power of the Court to set aside legislation and administrative conduct which violates constitutional principles or lacks rationality, there cannot be a true liberal democracy.  We encounter, instead, the tyranny of the majority, about which the renowned French political scientist and philosopher, Alexis de Tocqueville, expressed concern almost 200 years ago, as part of his study of democracy in America.  So too, John Stuart Mill, in his 1859 book “On Liberty”, warned about the inherent weakness to majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions.  This results in oppression of minority groups comparable to that of a tyrant or despot.

Since Israel does not have some of the other checks against government excesses, which are enjoyed by certain other democracies, with a separation of the legislative and executive bodies and sometimes a bicameral legislative body – examples are the House of Commons and the House of Lords in the United Kingdom and the House and  Senate in the USA ‑ the only check that Israel has against any government exploiting its majority in order to pass whatever legislation it may deem fit, no matter how extreme or self‑serving, is its Supreme Court, with the power to review and strike down offensive legislation and set aside administrative abuses of authority and power.  Accordingly, the Supreme Court is there to safeguard minority factions against the tyranny of the majority or, as it has sometimes been described, the tyranny of the masses. 

That was precisely Tocqueville’s concern, that a majority could become an all‑powerful force and could tyrannize unpopular minorities and marginal individuals.  Unchecked political power will eventually always lead to tyranny.  It is the Court that is the ultimate check against the unconstitutional or irrational exercise of that political power.  Inherent, therefore, in the separation of powers, is the function of an independent judiciary, which must hold the legislature and executive to account.  It can only perform that function, with an uninhibited review process which the Israeli Government’s judicial overview proposals are designed to remove.

We in South Africa, are readily able to appreciate the position as it prevailed   under apartheid before 1994, with absolute parliamentary sovereignty and our courts bereft of any judicial review power.  And so, the most pernicious legislation could be passed, including the 90- and 180-day arbitrary detention laws, in respect of which the courts had no power of review at all.  In contrast, since the advent of democracy in South Africa, our Constitution guarantees, inter alia, personal rights and freedoms and entrenches the power of the Constitutional Court, to strike down and declare invalid any legislation or administrative act which violates those rights and freedoms. There have been countless judgments of our Constitutional Court, which have declared unconstitutional and invalid laws passed by the ruling ANC government.  In one of its leading judgments dealing with the Nkandla scandal involving then President Zuma, Chief Justice Mogoeng introduced the unanimous judgment of the Court, with the following statement:

“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalized during the apartheid era.  To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy.  For this reason, public office‑bearers ignore their constitutional obligations at their peril.  This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”

Israel, whilst it does not have a written constitution, has a body of law, developed over many decades, which serves as its uncodified constitution.  A written or codified constitution is not a requirement.  One of the strongest constitutions in the western world, is the uncodified constitution of the United Kingdom, developed over centuries of jurisprudence.

One cannot overstate the extreme existential danger that the Israeli Government’s judicial overhaul policy poses to the entire social fabric of Israeli society.  In a recent interview, constitutional expert, Professor Yaniv Roznai, an Associate Professor and Vice‑Dean at the Harry Radzyner Law School, and Co‑director at the Rubenstein Center for Constitutional Challenges at Reichman University in Herzliya, expounded on that danger as follows:

“The question of checks is crucial.  If you look around the world, all other democracies have various mechanisms to make sure that political power is checked and diffused.  Israel is the only democracy in the world without any of these mechanisms.  None.  We have only one parliament with one house that is controlled by the coalition leadership, usually 5 or 6 politicians, who can impose their will through coalition discipline.  And you need to remember that in the Israeli system, most parties are actually non‑democratic in the sense that there is no democratic process within the party.  So, we have totalitarian parties where you have a leader who decides who will be in the party and in which place.  It is in this context in which the Government is already so strong, that now we want to get rid of those limited checks, such as the Court that were crucial.

……………

I am extremely worried about our democratic future.  Being a student of comparative constitutional law, and seeing around the world the process of democratic erosion, and the way populus Governments abuse legal and constitutional means to undermine the other democratic institutions of the Government, people now tell me: ‘What do you want? The Israeli Supreme Court now has absolute powers’.  This is of course not true, but I don’t know a country in history that lost its democratic character and became a dictatorship because the court was overly activist in its human rights protection or had a very broad understanding of reasonableness doctrine.  But I know of many democracies who have collapsed because the Government and executive had too much power.”

One thing is clear.  The controversy created by the Government’s intended judicial overhaul is the most profound and critical internal issue that Israel has faced since its establishment. The divisiveness, rancor and animosity that this proposed legislation has created is as unparalleled as it is tragic.  If this legislation as contemplated is passed and implemented, it will forever adversely change the face of Israeli civil society.

Disregarding Netanyahu’s personal stake in the proposed legislation consequent upon the criminal charges he faces, his latest explanation that this judicial overhaul will not destroy democracy but will in fact strengthen it, is, ironically, the mantra of every demagogue who seeks to justify the erosion of the courts and the rule of law on the pretext that a democratically elected majority government must be the only and final arbiter of its exercise of political power.  That, precisely, is the recipe of every authoritarian state.  Unsurprisingly therefore, already last Monday, immediately after the initial law was passed by the Knesset, removing the power of the Court to apply the critical reasonableness standard, Ben-Gvir crowd glowingly and chillingly that this was only the beginning for “the salad bar is open”. Beware the slippery slope.

In the final analysis, we should never take democracy or democratic values for granted.  They do not self‑regulate.  In every truly democratic society, it is the responsibility of the people ‑ hence the valiant and indefatigable 30-week protests ‑ to guard against the potential disintegration of that democratic order through the concentration of hegemonic power, which finds expression in Lord Acton’s famous quote:

“Power tends to corrupt and absolute power corrupts absolutely.”

The Israeli Supreme Court, which for decades has enjoyed international respect and recognition for its independence, judicial integrity and profundity, has provided, and must continue to provide, the necessary protection against any abuse of that power by any government du jour.  If the judicial overhaul proposals are implemented, it will forever be stripped of that power and Israel will cease to be a liberal democracy.

If you want to be a democracy, there can be only one solution. You need broad consensus for anything that dramatically shifts the balance of power and increases its concentration in the hands of the government.  Any radical changes must be resisted because they don’t allow for careful debate and reflection over successive parliaments.  If there is any suggested room for improvement of the Supreme Court, absent rational deliberation and ultimately consensus, it will lead to civil disobedience and revolt.

Oshy Tugendhaft is an prominent attorney in Johannesburg, South Africa.