Is Israel’s democracy in danger? One of the main goals of the new governing coalition, under the leadership once again of Benjamin Netanyahu, is to alter Israel’s court system. Specifically, the coalition is committed to having the Knesset pass a “basic law” that would give the Knesset the authority to override Israel’s Supreme Court, called “the High Court,” if it struck down a law passed by the Knesset.
That is, the final say on all laws in the country would rest with the Knesset, not with the High Court.
Does this put Israel’s democracy in danger? After all, an independent judiciary is an indispensable element of democracy. If the Knesset can override a High Court decision that struck down a law passed by the Knesset, would Israel’s judiciary still be independent? In American democracy, the Constitution gives the Supreme Court the final word on the legality of laws passed by Congress.
Israel, however, is not the United States. Israel has no Constitution, so the High Court in Israel cannot rule on the constitutionality of any law the Knesset passes.
Neither can Great Britain’s highest court. It, too, is not the final word on laws passed by the British Parliament. If Israel’s current government alters its court system to confirm with Great Britain’s, and if this is deemed a danger to Israeli democracy, then British democracy is also in danger.
In fact, there is more than one type of democracy and more than one type of court system in a democracy.
If Israel alters its court system to conform more closely with Great Britain, this would be no surprise. Much of Israeli law derives from British law, based on the British Mandate that governed Palestine, including its Jewish community, from 1922 to 1948.
If so, how did Israel end up with a court system in which its High Court retains for itself the final word on all laws passed by the Knesset?
Israel, while lacking a constitution, does have a few of what it calls “basic laws.” One of these is the Basic Law of Human Dignity and Liberty.
Apparently, Israel’s High Court often uses this law as a kind of catch-all to overrule any law it sees fit. The High Court began to do this beginning in the 1990s. If this practice of the High Court is curtailed by the current Israeli government, it will simply restore a status quo ante. The High Court only very rarely overturned a law passed by the Knesset before the 1990s.
No one regarded Israel before the 1990s as anti-democratic. Indeed, before the 1990s, Israel had a female prime minister, universal suffrage, a raucous Knesset, a veritable and very visible democracy. So democracy in Israel would not be in danger now if the current Israeli government restores the democracy Israel had in the pre-1990s with a more limited authority of its High Court.
The proposed alteration of Israel’s High Court would actually enhance Israeli democracy, not endanger it.
Under the American system for the selection of Supreme Court judges, there is at least indirect citizen participation. The people’s representatives in Congress may vote a Supreme Court nominee up or down.
There is no parallel process in Israel. Rather, there is a judicial selection committee of nine members. Only four are representatives of the people: two Knesset members and two government ministers (and even these four need not necessarily be representatives of the people, since a government minister need not be a member of the Knesset, although he or she usually is). In any event, five members of the committee, including three sitting High Court judges, are unelected.
In theory and also in practice, the High Court is a self-selecting court, largely a philosophical echo chamber. The current Israeli government wishes to alter this.
All this adds up to much more than a theoretical exercise in political science. The Israel High Court’s assumption of the right to overrule laws passed by the Knesset creates instability and ill will.
An example of instability:
As in any democracy, it takes political give-and-take between opposing political parties and philosophies to come up with a bill that can pass the Knesset. Despite the narrow margin of control by the ruling government coalition — and it’s always narrow; no single government in Israel’s entire history ever won a majority of the Knesset seats — there are instances in which a significant majority of Knesset members comes together. For example, some 80 (out of 120) members agreed to a law concerning illegal infiltration.
The High Court struck it down — four times. This left the country in limbo.
A perennial debate in Israel concerns the right of full time Torah students not to serve in the Israel Defense Forces. Despite the often bitter nature of this divide, a majority of the Knesset has actually passed three compromise bills that address-ed this issue to the satisfaction of the majority of the two main sides of the Israeli political spectrum. The High Court struck them down, leaving in place a bitter status quo.
It is often said in the US that when the Supreme Court strikes down a law as unconstitutional and leaves the ball in Congress’ court, nothing happens because Congress cannot get its act together. In Israel, however, the Knesset has gotten its act together, at least on some critical issues; still, the High Court strikes down its decisions.
The court, self-selected and guided by its own philosophy, is, in part, a cause of instability in Israel. To fix this would improve, not endanger, democracy.
So why is there such strong opposition among some Diaspora Jews to a a reform of Israel’s court system? Why is the new Israeli government accused of threatening Israel’s democracy? In part, it is because the differences between Israeli (and British) and American democracy are not well understood.
Also, the current objections in the Diaspora stems not so much from solicitude for Israeli democracy per se as from fear of the some of the laws the Knesset might pass.
Maybe I’m naive, but I don’t foresee any new laws from the Knesset that will have a great impact on the sensibilities of the Jewish people beyond the borders of the State of Israel.
For example, one new law now under discussion would establish aright of Israeli citizens to choose to have a limited area on a beach segregated by sex. No citizen would be forced to go there; only those who so chose would go there. Every citizen would retain the right to go any other beach. Maybe I’m naive, but I can’t see this making much of a difference to the great majority of Jews in the Diaspora. The same for a law allowing single sex music concerts; i.e., women singing for women. Nor can I see any other new, significant, religion-based laws gaining much traction.
Time will tell. In any event, Israeli democracy is not in danger.
Copyright © 2023 by the Intermountain Jewish News
You humility, wisdom and learning are much needed on the bench. I will lobby for you nomination when the vacuous echo chamber Court is cleared.