Perspective 99. "Judicial Reform" in Israel: Just Restoring a Balance?

Prime Minister Netanyahu claims that curbing the Israeli Supreme Court’s right to invalidate legislation is actually a defense of democracy rather than an assault on it. After all, a Knesset majority is chosen democratically, while judges are unelected. Is this a valid point?

No. Liberal democracies generally include protection against what De Tocqueville called “the tyranny of the majority.” A majority vote in itself does not guarantee the human rights without which democracy becomes a farce. This is especially true for Israel, which has no written constitution, with “entrenched” status, to hold back a tyrannical majority.

In perspective, Israel was lucky in inheriting a legal and judicial system with some built-in safeguards. When Great Britain established the Palestine Mandate after World War I, they left Ottoman law intact except as changed by Mandatory legislation or by the gradual infusion of British common law. Actually much of Ottoman law was Western-influenced, being drawn largely from the French code. But the British influence was key; Israeli courts continued to draw on British common law, even citing U.S. cases that involved common law. Often, these cases involved basic human rights.

Israel’s First Knesset failed to adopt a constitution because of the secular-religious split. Instead, it projected a series of “Basic Laws” as building blocks of a future constitution, and to date fourteen such laws have been adopted. But these laws can be changed by a simple majority in the Knesset, the only “entrenchment” being the requirement, in some cases, that this be an absolute majority rather than just a majority of those present.

This, obviously, is not much of a safeguard against a capricious majority that might decide to abrogate all of the Basic Laws and/or curtail human rights in a way that would make elections meaningless (as has happened elsewhere). The Supreme Court did assume the right to review legislation that violated Basic Laws or the principles in Israel’s Declaration of Independence -- meaning generally accepted principles of liberal democracy. This justified reference to common law, and interestingly nine of the first fifteen judges on the Supreme Court received at least part of their training in English-speaking countries.

But the right of judicial review was more firmly established by two Basic Laws, on Freedom of Occupation, and on Human Dignity and Freedom, in 1992. Both laws contained a clause that affirmed: “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 required."

On this basis, the court in 1995 (Mizrachi v. the Minister of Finance) established its right of judicial review, giving Basic Laws superior status and laying a firmer basis for invalidating laws in conflict with them. Furthermore, this role of the court was generally accepted. Subsequently it intervened often in defense of basic rights, often angering the far right on issues involving Jewish settlements in the West Bank, and the haredim (ultra-Orthodox) on issues such as exemptions of yeshiva students from military service.

These two sectors are now half of the governing coalition that intends to end the Supreme Court’s right of judicial review – by a simple majority vote. Thus an “unwritten” constitutional safeguard against abuse of power, patiently developed from a fortunate legacy and nurtured by general acquiescence, would be wiped away at one blow.

The only consolation is that, once the simple majority is reversed, it could also be restored at one blow. And maybe, someday, Israel will even have a constitution with entrenched human rights.