Discussion of Israel's "end of democracy" debate

On June 1, 1982, Israel undertook Operation Peace for Galilee, the second of its Lebanon invasions. Its goal was the elimination of Yasser Arafat and the PLO. Ultimately, public pressure and the Reagan administration’s US Special Envoy Philip Habib, enabled the PLO to survive and relocate to Tripoli.  US press and TV news were fostering stories of Israel’s inhumane targeting of schools, hospitals, and indiscriminate bombing of civilian population.  The press distortions were undermining US public support, as well as that of the American Jewish community, for Israel’s military action. To combat these distortions, the Council of Jewish Federations organized an emergency four-day fact finding trip in which I participated along with 40 American Jewish Community leaders. Our goal was to witness Israel’s military action on the ground, firsthand, to understand its conduct of the war. The true benefit of this experience was coming to understand the inordinate distortions of press reporting regarding the actions of Israel. Today, the public press, as well as a significant segment of the Israeli population, is focusing on the assertion that the Israeli government’s consideration of legislation that would enable the Knesset to override a Supreme Court ruling, will lead to the “End of Israel’s Democracy”. Perhaps this essay will provide some clarification to this highly charged and publicized assertion.

Israel’s institutional stucture

The management of Israel’s court systems falls to the Ministry Of Justice.  This Ministry is headed by two people:  The Minister of Justice (a Cabinet position) and President of the Supreme Court (appointed by the Israel’s President.) Under this Ministry, Israel operates two separate court systems:  Religious and Secular.

Religious Courts are broken into 4 basic, independent court systems:

Jewish Rabbinic Courts (Rabbinical based) Includes 12 District Courts; 1 Conversion Court; 1 Appeals Court (2 Head rabbis of Israel).  Deals with Halachic law.

Muslim Court (Sharia):  Established under British Mandate prior to State of Israel. 9 Districts plus Court of Appeals.

Druze Court:  2 Regional Courts and 1 Appeals Court. 

Christian Courts:  One for each of 10 different Christian Sects currently functional within the State

Secular Courts. The March 8, 1984, Israel adopted the 8th Basic Laws: The Judiciary, which formalizes the creation of an organized Civil and Criminal Judiciary, the types and structures of the Court system, its responsibilities and process for judicial appointment.  There are six courts within this structure, which are broken down into the following:

Immigration:  Hears issues regarding visas and immigration status.

Military: a system that mirrors the Civil courts, established solely for dealing with crimes committed within the IDF, including criminal, security questions, or distinct issues with the Occupied Territories. Each court typically consists of 3 judges, two of which are military and one civilian. There are three distinct geographic districts, wherein each branch of the Military, whether ground, air, or naval, has its own parallel system, including an internal appeals process.

Labor. There are 5 District Courts and a National Labor Court of Appeal. Each court is composed of 3 judges, one professional and two lay judges with expertise of the question at hand. Deals with any labor/union issues, and/or claims issues under the National Health Insurance Law.

Magistrate. 30 Courts in the system. Single judge adjudication unless the chief judge determines the appropriateness of creating a 3-judge panel.  Deals with Criminal issues up to 7 years’ incarceration; Civil issues up to 2.5MM shekels ($850,000); real estate; traffic; small claims issues up to 30,000 shekels ($10,000); and everything else. Functions substantially on extensive written submissions regarding the issue at hand.

District.  One to three judge panels review Magistrate Court appeals. Also hears cases over 2.5mm shekels; longer than 7-year prison sentences; maritime issues; prisoner appeals; large corporate, partnership matters; tax matters; questions of government involvement. 

Supreme. Most broadly based, ultimate appeal from all categories listed as well as matters of Government Authority. It is comprised of 15 Justices Appointed by the President of Israel, based on recommendation of the 9 Members of the Judiciary Committee. All judicial appointments are subject to psychological review to determine their “fitness” to serve. Judges are mandated to retire at age 70. 

The publicly stated concern regarding the current government’s movement to override the Supreme Court’s decision to negate a Knesset action is that it will remove the Judiciary’s “checks and balances” should the Knesset enact a law that may be contrary to Israel’s Thirteen Basic Laws guidance.  The counter-issue, however, is that the Supreme Court’s authority is based upon the application of the so-called “Limitation Clause”, written into both the 1992 Human Dignity and Liberty Law, and the 1994 Freedom of Occupation Law. The Limitation Claus was narrowly adopted by a Knesset committee, ostensibly with the input of Judge Aaron Barak. Judge Barak’s court first asserted the Limitation Clause in the 1995 United Mizrahi Bank v. Migdal Cooperative Village ruling to establish the Supreme Courts override authority.  Hence, the Supreme Court’s authority to override the Knesset is generated internally through its own self-directive ruling.  There exists no formalized constitutional authority for the Judicial branch to override the Legislative branch of Israel’s government.

Assessing the potential “end of democracy” requires answers to the following questions:  first, is the Supreme Court acting beyond a de facto constitutional authority and did (Chief) Judge Aaron Barak politically engineer the creation and adoption of the Limitation Clause to usurp that oversight power?  Secondly, is the structure of the Judiciary Committee inhibiting the opportunity to create more balance within the Supreme Court by politically controlling the appointments process? Third, does the opportunity to provide a more “representative balance” rest in the Knesset adopting new laws that can override the Supreme Court’s current de facto check-and-balances authority?

Public Perspectives:

Pursuant to a 2021 survey by the Israel Democracy Society, 56 percent of the Israeli public on the left think the Supreme Court has an appropriate amount of power, while 57 percent on the Israeli public on the right think it has too much power.  Approximately the same percentage relationship feels the court is “political” in its decision making. This survey indicates that most of the interviewee’s responses were based on political divisionary perspectives. Equally interesting, the surveyor noted that 20 percent of the Israeli public has direct interaction with the judiciary, indicating the significance of the judiciary’s impact on daily public life.  It also provides an explanation as to why 52,000+ lawyers practice within Israel, the highest number per capita in the world.

I24 News commentator, Daniel Haik, within a Jan. 15th editorial, raises the question of “objectivity” by current Chief Justice Esther Hayut. He highlights instances of the “politicization” of Court actions from the past, with specific references to the “activist revolution of (Judge) Aaron Barak,” who is credited with the expansion of Supreme Court interaction and oversight. In contrast, the current right-leaning Justice Minister Yariv Levin asserts (as have earlier right leaning governments) that the democratic will of the electorate is being undermined by the liberal leaning court, substantially protected under the Judiciary Committee appointment process.  Coupled with the leadership of judicial proactivity created under the Judge Aaron Barak regime (1993-2006) a proactive countenance of legislative activity has prevailed.

Judicial Selection Process, other than Supreme Court (per 1984 Rule of Procedure):  An applicant’s qualifications are reviewed and confirmed by the Judicial Committee.  After public publication of the findings,  a formal interview is conducted by 3 members of the Judicial Committee, including one Judge, one Knesset member and one attorney. The applicant’s Judicial Committee acceptance or denial is done by a majority of members present at the consideration meeting.  Hence, even at the lower court levels, the political influence for the Judiciary Committee will prevail.

Creation Of A Constitution

On May 14, 1948, Israel’s Declaration Of Independence was executed by the members of the People’s Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist movement. One particular declaratory paragraph (bold and italics added) is significant when considering a discussion of Judicial directives of the State:

WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948….”.  This section clearly calls for the establishment of a constitution by a time certain but has yet to be accomplished. 

Instead, from 1958 to 2018, seated Knesset’s enacted what have become the Thirteen Basic Laws, which detail legal and operations functions within the State.  They include the:  1958/87 Knesset; 1960 State Lands;1964 The President; 1968/2001 (revision) The Government; 1975 The State Economy; 1976 Israel Defense Forces; 1980 Jerusalem; 1984 The Judiciary; 1988 The State Comptroller; 1992 Human Dignity and Liberty; 1994 Freedom of Occupation; 2014 Referendum; 2018 Nation-State.

Specifically written into both the 1992 Human Dignity and Liberty law; and, 1994 Freedom of Occupation Law, is the “Limitation Clause”:  There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required. Presiding Chief Judge Aaron Barak hailed the adoption of the Limitation Clause as a “constitutional revolution” on the basis that, for the first time, the Knesset set limitations on itself for the laws it was empowered to create.

In 1995, Judge Barak’s court issued a majority opinion (7 of 9 judges) that cited the Limitation Clause, overruling a Knesset law. In so doing, the Supreme Court established itself as the ultimate determinant of the “constitutional legality” of Knesset-passed statutes.  Effectively, Judge Barak’s Supreme Court unilaterally established its quasi-constitutional authority without the credibility of public definition, debate, and input required to establish a formal Constitution.

What was Judge Barak’s motivation to assist in the creation and implementation of the Limitation Clause? Perhaps Judge Barak’s assumed that the creation of a Constitution was not inevitable, or certainly not on the horizon for adoption. If so, then establishing Supreme Court authority was required to create a “check and balance” on the Knesset.  Regardless of the reason, the question of “judicial overreach” through use of the Limitation Clause has become the vanguard of Israel’s “end of democracy” debate.

In May 2003 the Knesset established the Constitution, Law, and Justice Committee. The committee’s directive is to enact the “Constitution by Broad Consensus Project”.  The committee’s goal is to define and create a Constitutional document for presentation to the Knesset, followed by formal public adoption.  Until that is accomplished, the de facto authority of the Supreme Court will continue to protect the Basic Laws as the established principles by which Israel is governed.  As recently as 2020, the Supreme Court affirmed in a “Special 9 judge panel” that the Basic Laws are indeed part of the Constitution of Israel.  In effect, the Judiciary has proclaimed the establishment of a Constitution without enaction by a constituent assembly. This concept follows the six countries, including Canada, the United Kingdom, New Zealand, San Marino, and Saudi Arabia, all of which govern through an “uncodified” constitutional structure consisting of an historic amalgam of Basic Laws, statutes, and common laws.

Conclusion:

The bedrock upon which Israel’s Declaration of Independence is created, is affirmed as follows: THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

Israel evolved from the ashes of the Holocaust, even though the foundations of modern Zionism was established in the last of the 19th century. The originating population of 400,000 people comprised a social and cultural diversity of thoughts and philosophies unseen in the creation of any other country.   Israel should be applauded for its recognition of the breadth of its democracy, representing this most diversified groups of people, with a single characteristic of being Jewish.  The evolution of its laws was based on the maturing needs of its society.  Effectively, a constitution all but exists under the Basic Laws.   Formally, it does not, and the democratic function of checks and balances can only be applied through judicial mandate, lacking the affirmation of a constituting authority.

The real challenge to Israel’s democracy is not rested in the Knesset override proposal. Its in the judicial appointment procedure embedded within the 1994 Basic Law: Judiciary.  Among other goals, this Basic Law was intended to eliminate corruption from within the historical process of judicial appointment. This was to be accomplished through the creation of the 9-member Judicial Committee for assessment, review, and appointment of new judges. Unfortunately, the structuring of this committee produced deeper politicization of the judicial appointment process. 

The 9-member Judiciary Committee is composed of three defined contingents: (1) The Justice Minister and another Cabinet member, plus one Knesset member, all of whom represent the government in power; (2) One member from the Opposition Party, and two Bar Members, all of whom are prone to be competitive with the Government in control; (3) Three members of the existing Supreme Court, including the President (Chief) and two other Judges.  It is highly likely these Judges will act as a block.  While each of the three Supremes could act in concert, and the three government representatives could also act in concert, it left the swing votes to the two members of the Bar, probably in concert with the opposition party appointee.  Therefore, if a conservative government wants a particular judicial candidate, and the historically liberal Supremes do not, the majority would be decided by the two Bar members, who historically vote with the Judicial.  Effectively, the Supreme Court membership block on the Judicial Committee virtually guarantees the inability of a conservative government to adjust the Court’s composition.

Further, it is highly unlikely that the three Supremes will allow a new conservative appointee to enter their established realm.  Had the Supreme Court not been in substantial unison at the time of the creation and adoption of the “Limitation Clause” in 1992/1994, it is improbable that Judge Barak’s court’s 1995 ruling in United Mizrahi Bank v. Migdal Cooperative Village could have established the Court’s de facto constitutional authority to overturn a Knesset law.  While that ruling opened the opportunity for the Supreme Court to establish a Check and Balance on an overzealous Knesset, that entitlement was derived from the Supreme Court’s internal determination, not by Constitutional directive. 

The press is focusing on both the Knesset’s proposal to enact a Supreme Court override law and the judicial appointment process.  New proposals to adjust the makeup of the Judicial Committee to be more representative of the ruling government (not dissimilar in concept to appointment of US Supremes) are being considered. Taken together, these two adjustments create a radical override to an historic judicial structure. 

The government could choose to negotiate a more evolutionarily transition, therein softening the argument of “end of democracy.” The Knesset could accept the Supreme Courts authority to enact the reality of the Basic Law’s Limitation Clause and focus instead on politically balancing the Judicial Committee. The ultimate goal of an objectively representative judiciary could therein be accomplished. Over time, a more balanced democracy would prevail.

Whatever reforms the current government undertakes, the left-leaning press and public will accuse the government of “threatening the sanctity of Israel’s democracy”. Regardless, Israel will survive, will adapt, and will continue to be democratically representative of its population. Democracy does not provide instantaneous solutions.  It does, however, offer recognition of systemic problems and a mechanism for correcting imbalances.  Israel’s true nature of inclusiveness, diversity, and confrontational thought will ultimately provide an acceptable, if not perfect solution.