Israel, India Both Have A Hyper-Activist And Unaccountable Supreme Court: Some Parallels And Lessons

by Adv. Avraham Russell Shalev - Jan 24, 2023 12:35 PM +05:30 IST
Israel, India Both Have A Hyper-Activist And Unaccountable Supreme Court: Some Parallels And LessonsRepresentative image. (Website/Luke)
Snapshot
  • The Israeli Supreme Court has become a central figure in the country's political scene, regularly interfering in policy issues as diverse as security, immigration, parliamentary proceedings, and religious status quo.

Israel's Left is currently convulsing over the new government's proposals for serious judicial reforms.

Israel's Supreme Court is widely perceived, both in Israel and abroad, as exceptionally powerful and activist.

These powers allow it to play an outsized role in Israeli politics, without democratic accountability or legitimacy.

Israel's constitutional structure is a judicial creation, interpreted and enforced by self-appointed judges. Nothing is beneath or above the purview of Israel's philosopher-judges.

When the current Justice Minister Yariv Levin was first sworn into the Knesset (Israel’s Parliament) 13 years ago, he dedicated his maiden speech to the urgent need for judicial reform.

In 2010, Levin said: "Not everything is justiciable. Judges holding radical views are not fit to rule upon value judgements that are in fact questions of policy."

In fact, since the 1990s, successive justice ministers from right-wing and left-wing parties have warned against the growing overreach of Israel's Supreme Court.

One would be hard-pressed to find serious thinkers on the Israeli Right who dispute the important role that an independent judiciary plays in upholding the rule of law.

The problem in Israel, however, is of a different nature.

Unlike the Knesset and the executive, the Supreme Court's powers are ill-defined and practically unchecked by institutional balances.

This has led to the court becoming a central figure in the Israeli political scene, regularly interfering in policy issues as diverse as security, immigration, parliamentary proceedings, and religious status quo.

The court's continual encroachment on the government's role has created chronic instability in Israeli politics.

The former American solicitor-general and judge Robert Bork described the problem thus in his 2002 book, Coercing Virtue:

"Imagine, if you can, a Supreme Court that has gained the power to choose its own members, […] set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures. Imagine a Supreme Court that has created a body of constitutional law despite the absence of an actual constitution.… No act of imagination is required: Israel's Supreme Court has done them all."

Lest you dismiss Bork's words as mere hyperbole, let's remind ourselves of the history of Israel's so-called constitutional revolution.

Prior to the Knesset's passing of the Human Dignity and Liberty Basic Law in 1992, Israel followed the British system of parliamentary supremacy.

With no written constitution, Israel's Supreme Court was unauthorised to strike down legislation.

In 1995, Israel's politicians were surprised to discover that a "constitutional revolution" has occurred.

Based on the laconic and minimal Basic Law (Israel's quasi-constitutional supreme laws), Israel's Supreme Court declared that it now had the power to void laws.

The revolution hasn't stopped there.

In 1995, the justices claimed that they were merely implementing the Basic Laws.

In recent years, the justices have begun to claim that they themselves are above the Basic Laws and may be authorised to strike down constitutional amendments based on amorphous "fundamental values".

Anybody who knows the aftermath of India's "basic structure" doctrine understands that such extreme judicial overreach is a recipe for a constitutional crisis.

Israel's supreme court and legal institution is uniquely powerful when compared with other democratic countries.

In the overwhelming majority of OECD countries such as the US, Canada and Australia, Supreme Court judges are appointed by elected officials.

In Israel, judges are appointed by a professional committee in which the judges and the Bar association have an automatic majority.

Of the 37 OECD countries, Israel stands alone with Turkey and Greece with judges having the ability to strike down law, while being unaccountable to elected officials.

With all due respect to Greek and Turkish democracy, this is simply the worse of both systems.

Constitutional matters are not purely objective legal matters, but require the balancing of competing values, to which each judge brings his or her own worldviews.

Due to the composition of the judicial selection committee, Israel's judges are picked from a largely homogenous background, with occasional conservative fig leaves.

The judges, who have enormous power to impose their own policy preferences, are mostly secular, Ashkenazi (Jews whose families hail from Europe), universalistic in their worldview and dovish in their politics.

The clash is particularly acute given that the majority of the Israeli population holds conservative, traditional and nationalistic positions.

Take the issue of illegal immigration. In the late 2000s, Israel found itself faced with a flood of tens of thousands of illegal migrants from Africa.

While European countries were confronted with the same issues a decade later, Israel was an early harbinger of the phenomenon.

Mass illegal immigration poses a serious challenge to Israel's sovereignty over its borders as well as to the country's character as a Jewish state with a Jewish majority.

As the number of migrants increased, the Knesset finally passed a law detaining migrants, with the goal of deterring them from entering the country, which the Supreme Court struck down.

The law was amended by the Knesset three times and was struck down by the court three times.

The laws against illegal immigration were passed with wide support in the Knesset.

The Supreme Court then struck down another law aimed at deterring illegal immigration, using a gentler and less coercive method.

The law would have required employers of illegal immigrants to hold a percentage of their salary as collateral, to be collected upon them leaving the country.

The legal establishment has repeatedly quashed government policies to deter and deport illegal immigrations.

Of course, none of the judges, their social circles or upscale neighbourhoods must deal with the problems that illegal immigration causes, which fall largely on poorer Israelis.

The second central figure in Israel's judiciocracy is the attorney-general who is a professional civil servant.

Despite their vast powers that are nowhere defined in law, they have asserted near-exclusivity over government counsel and representation.

As a leading legal expert, Dr Eitan Levontin, has described, "there is no such thing, to the best of my understanding, in any other place. The legal situation in Israel is not a minority opinion, but rather a single opinion, and it seems to me that a chasm – not just a disagreement – lies between it and the legal situation in any comparable country."

In 2018, for example, the AG refused to represent the Interior Minister before the Supreme Court, nor to allow him external representation.

The right to legal representation and due process, guaranteed even to the worst criminals, is denied to Israel's elected ministers.

The Supreme Court has often ruled that his counsel may be binding on public officials.

Former AG Avihai Mandeblitt's actions during the Covid-19 crisis demonstrate the absurdity of the AG's legal imperialism.

He informed the government that there were "legal obstacles", a vague and practically meaningless term, preventing them from relying on a mandatory era law to encourage vaccinations.

He forbade the government from supplying foreign countries with surplus vaccines in exchange for diplomatic concessions, based on "legal obstacles".

These same "legal obstacles" prevented the Health Minister from closing Israel's national airport to thousands of Israelis returning without a negative PCR test.

One civil servant, devoid of any public mandate, was able to block the Israeli government, without the government having real recourse.

The AG and the Supreme Court often work in collusion, with the AG serving as the court's long arm in the government.

In 2006, then-Interior Minister Roni Bar-On decided to strip permanent residency status from four senior officials in the Hamas terrorist organisation in east Jerusalem.

The four immediately petitioned the Supreme Court, which, after 11 years, ruled that the Interior Ministry's decision was void, despite having been reconfirmed by four other Interior Ministers in the interim.

Despite the law saying that "the Interior Minister may, according to their discretion… void a residency license according to this law", the court ruled that the law wasn't explicit enough.

The court gave the Knesset half a year to amend the law before the revocation was voided.

The Knesset amended the law, stating in the protocols and explanatory section the Knesset's intention to prevent terrorists from receiving Israeli social security benefits.

Nine months after the amendment, while inspecting its implementation, Knesset members were shocked to discover that the terrorists were granted residency licences allowing them to collect social benefits.

Justice Ministry officials explained to the legislators that the AG decided that the proper understanding of the law requires residency with social benefits.

When the Justice Ministry had originally prepared the bill, it stated that residency will not be stripped without the written approval of the AG.

Despite the Knesset members rejecting such a version of the law, the AG remained the de facto interpreter of the law.

Finally, in 2019, the AG issued a legal opinion stating that granting permanent residency with social benefits was the only constitutional application of the law. 

These deep institutional defects are compounded with a culture of judicial activism and non-deference towards democratically elected officials.

Aharon Barak, the former Chief Justice and architect of the Constitutional Revolution, famously stated that "everything is justiciable".

This has major ramifications for political stability.

Among its myriad problems, the final nail was struck in the coffin of Israel's previous Bennett-Lapid government by the Supreme Court.

The court ruled against the informal prohibition against bringing bread and other non-kosher products into hospitals during Passover, upending a form of modus vivendi.

Israel's religious government members immediately were subject to intense pressure by their constituents to resign.

No issue is too trivial or important for judicial interference.

The Supreme Court has ordered the Prime Minister to fire ministers, based on amorphous standards of reasonableness.

In 2020, the court debated whether Benjamin Netanyahu could serve as prime minister, despite succeeding in forming a unity government and gaining the Knesset's confidence.

In Israel, the last word on who can serve in the government belongs not to the voters, but to the judges.

Israel's legal institution demonstrates a deep suspicion of democracy, in the sense of actually allowing the people to rule themselves.

Former justice Zvi Tal admitted that accusations of "judicial dictatorship" were justified in a 2017 interview: "Supreme Court justices aren't elected by the public, don’t owe anybody an account for their decisions and don't bear any responsibility for the results of the preferences. When their decisions require a budget, it doesn't concern them where it will come from and at what cost".

After over three decades, Israel's citizens are tired of rule by Platonic philosopher-kings in judicial garb.

The new Netanyahu government must act swiftly to return the power to Israel's demos.  

Founded in 2012 by Prof Moshe Koppel, the Kohelet Policy Forum has brought new ideas to the forefront of Israeli politics. Kohelet's official mission is to "promote national sovereignty and individual rights".

For too many years, Israeli's conservative and traditional sectors lacked a coherent ideological response to the universalist, left-wing and often post-Zionist messages dominant in Israeli media, academia and bon-tons.

One need only glance over Kohelet's multiple policy-papers to understand that the Forum is a wave of fresh air to a stagnant Israeli political culture, often dominated by left-wing groupthink.

Separation of powers, privatisation of services and national security are only some of the issues that the conservative institute promotes.

Recently, celebrating its tenth anniversary, Kohelet has many important successes to its name.

Kohelet's economic department pushes data-driven policy on deregulation, reducing government bureaucracy and free-market economics.

The Forum's international law experts have played a leading role in combatting the anti-semitic Boycott, Divestment and Sanctions movement, and exposed EU and international hypocrisy against Jewish communities in Judea and Samaria.

In 2018, the Knesset constitutionally enshrined Israel's status as the nation-state of the Jewish people, a longtime brainchild of the think-tank.

The current judicial reforms are another one of Kohelet's flagship policy issues.

Adv. Avraham Russell Shalev is researcher at the Kohelet Policy Forum, Legal Department.
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