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Are Israel’s courts in danger?

Netanyahu and his likely coalition partners want to change Israel’s court system

Reports suggest that high on the list of Prime Minister Benjamin Netanyahu’s likely coalition partners’ priorities is to reduce the authority of Israel’s highest court, called “The High Court.”

Israel’s reputation rests on a few bedrock principles, among them its military strength, its automatic citizenship for virtually any Jew around the world and its technological leadership. Surely just as important is Israel’s reputation as a democracy. Critical to democracy is an independent judiciary. Is Israel’s judiciary in danger?

Possibly, depending on how far a reform of the judiciary goes. Certainly, some aspects of Israel’s judiciary could benefit from structural reform. The fact is, the way Israel’s High Court works is markedly different from the judicial system in the US. Among the differences:

• Prospective justices on the High Court are not nominated by the people through their elected representatives. Prospective justices go through no public confirmation process, under which Israel’s elected representatives may vote them up or down. Rather, justices are nominated by a select committee whose virtually uniform judicial philosophy guarantees a High Court that is debate-free on fundamentals.

If judicial reform in Israel is to mean an opening up of prospective justices on its High Court to a public confirmation process, this would enhance, not endanger, democracy.

• Justices on Israel’s High Court do not rule on Israel’s constitution for the simple reason that Israel has no constitution. The idea that judicial reform would allow the Knesset to overrule certain rulings by the High Court is to identify an interrelationship between Israel’s fundamental powers that has no parallel in the American system.

This reflects not just the lack of an Israeli constitution, but an even more complex texture of judicial authority and precedent. Israeli law is based in part on British common law, a legacy of the British Mandate that governed Palestine, 1922-1948. Here and there in corners of the law there remain even Turkish precedents, a legacy of the Ottoman rule of Palestine that ended more than 100 years ago. Add to this what Israel calls its “basic laws.”

The ultimate authority in this mosaic is not so clear-cut as in the US, so that if the Knesset would be given the power to overrule certain rulings of the High Court, this would constitute a status quo ante. Before the 1990s, Israel’s High Court rarely overruled a law passed in the Knesset. Depending on which type of Knesset-passed laws would enjoy de facto immunity from High Court review, this would not constitute a danger to democracy any more than Israel’s reputation as a democracy was in danger before the onset of an activist High Court in the 1990s.

• No one needs standing to appear before the High Court. No one needs to prove a personal impact by any given law. For instance, if a Palestinian wants to object to an Israeli government decision to establish, sustain or expand a West Bank Jewish community, the Palestinian need not demonstrate that he or she is personally affected. This universal right to appear before the High Court has no parallel in the US Supreme Court procedure.

This universal right of standing has the effect of bestowing on Israel’s High Court political power. It can vote up or down any Knesset law based solely on what it thinks of it. If judicial reform in Israel is to mean a constraint on this de facto political power, such constraint would yield a more balanced separation of powers in Israel.

• The protection of minority rights in Israel is also a more complex matter than in the US. This is because Israel is a far more rigidly divided society along ethnic and religious lines than in the US. The most obvious case is the West Bank Palestinian population, which, though not formally ruled by Israel, avails its self of appeals to Israel’s High Court at will. The next obvious case is Israel’s Arab population. Next in line is Israel’s right wing voting public that, under the in-group structure that selects High Court justices, cannot have virtually any representation on it. The same applies to Israel’s Orthodox population. Structurally, the High Court in Israel exists in an essentially antagonistic relation to much of Israel’s population in a way that transcends who happens to serve on the court at any given time.

Bottom line: If there is an attempt to make the court more representative, or to curb its essentially political power, this would not constitute a danger to democracy. Quite the contrary. Depending on what kind of reforms are implemented, they could actually enhance democracy in Israel.

Here is one reform that should not be contemplated: a change in the law under which Netanyahu is currently being prosecuted that would apply to his case. However unfair this law might be — and we profess no intimate knowledge of it to say that it is — its suspension in Netanyahu’s case would, at minimum, make Israel look as corrupt as Venezuela, Russia and Iran. This indeed would be a danger to Israel’s democracy.

Copyright © 2022 by the Intermountain Jewish News

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