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'On the brink of collapse': Israel's battle for the Supreme Court

A planned reform of the Supreme Court by Prime Minister Benjamin Netanyahu's far-right and ultra-Orthodox government has been causing unrest in Israel for months. The tension came to a boiling point in late March: Following his call for reform to be called off, defence minister Yoav Gallant was temporarily dismissed. In response hundreds of thousands of Israelis took to the streets in protest and army reservists threatened to resign their duties. Prominent Israelis - from President Isaac Herzog to author Yuval Noah Harari - meanwhile, fear civil war. Netanyahu postponed the reform, but was forced to abandon his terrorism-supporting and openly racist security minister Itamar Ben-Gvir a National Guard of nearly 2,000 men gift.

While the protests against the reform - given the impact certain parts of it would have on democracy - are justified, they often overlook the fact that the Supreme Court has exceptional power within Israeli democracy. Reforming the Supreme Court is therefore - from a democratic point of view - not a bad idea a priori. Israel should therefore look for a reform of the Supreme Court that does have broad support in society to avert a dangerous civil war.


A battle never settled: the secular-theocratic divide

To understand the reform and the conflict surrounding it, it is important to put it in the context of an internal division that has been going on for some 75 years. For example, Bart Wallet - professor of Jewish Studies at the University of Amsterdam - argued in the VPRO podcast Europe Revolves that the current debate on the role of the Supreme Court can be traced back to the founding of the state of Israel in 1948. "On the eve of Israel's founding, there was a fierce debate on the identity of the Israeli state in the Zionist community."

Within this discussion, according to Wallet, a secular-Zionist and religious-Zionist camp can be distinguished. Seculars wanted to organize the state according to the Western model - "a democratic state where Jews happen to live" - while the religious wanted a theocratic state structure according to Jewish religious laws - the halacha - forwards.

Wallet: "In the end, it was decided: we will do nothing. Only a few basic laws were passed with which new legislation must not conflict. The state of Israel thus became a kind of work in progress." Although both the religious and secular camps are no longer homogeneous and spread across the political spectrum, Wallet argues that the divide has never been settled and is at the root of today's conflict.


The role of the Supreme Court in Israel

The failure to find a real solution in the secular-theocratic divide is why Israel no constitution and no body like the Dutch Senate has that controls laws. A slim majority of 61 out of 120 seats in the Israeli Knesset could thus be enough to introduce a law.

What this means for the role of the Israeli Supreme Court has previously been pithily explained by Israeli judges themselves. Thus wrote Aharon Barak - former Supreme Court president and a key figure in expanding the judiciary - that the judge is not a "mirror" but an "artist" with legislative powers: "The law without [judicial] interpretation is like a body without a mind." Judge Moshe Golan additionally stated that the Supreme Court is now filling in the spaces left by the missing constitution itself. This would complete the state constitution, "but" - says Golan - "it comes at a high price: a serious violation of democratic representation."

In practice, this means that the Supreme Court can exert far-reaching influence on government policy. It takes over parliament's monitoring role because it is may take up cases on almost any policy issue, from the appointment of ministers to even military policy. Also, in Israel, anyone - including individuals and bodies who are not directly interested parties - can ask the Supreme Court to rule on anything.

On top of that - due to the lack of a complete constitution - the Supreme Court cannot review policy on many issues against a written rule. How does the Supreme Court solve this? It uses the term "reasonableness" in its decision-making. Government policies that have been democratically approved can thus be blocked on a relatively subjective ground. A common criticism, therefore, is that the Supreme Court rates its own opinion higher than that of the people and is therefore undemocratic.

A thorny issue - finally - is that Supreme Court judges have too much influence in choosing their successors. A Supreme Court judge in Israel becomes appointed by the president, with the important caveat that in doing so, the president can only choose from among candidates nominated by a judicial selection committee. This committee has nine members: three Supreme Court judges, two ministers, an MP from both the coalition and the opposition and two members of the Israel Bar Association. Critics say the committee's unelected members - the judges and lawyers - can simply ignore the democratically elected members in votes due to their 5-to-4 majority. In the appointment of judges to the Supreme Court However, a majority of seven out of nine votes is needed, effectively allowing both groups to veto an appointment. Nevertheless, many Israelis are critical of the appointment procedure. All in all, there seems plenty of reason to reform the current system from a democratic point of view.


The Supreme Court in other democracies

In other democracies, the role of the Supreme Court is regulated very differently. In the US the will of the minority is protected by the presence of the Senate, which can reject a passed law in the House of Representatives. In addition, the president can veto a law and federal courts and the Supreme Court can draw a line under a law. Judges are nominated by the president and approved by the Senate. In essence, this means that the rights of political minorities are largely protected in US democracy. While oppression by the majority certainly plays a role in the US too, there are many institutional structures in place that limit the possibility of this happening.

Even in other democracies, the minority is better protected - at least institutionally - by not having a body with unbridled power. In Canada lies the power to appoint Supreme Court judges with the prime minister, but parliament and the provinces can override Supreme Court rulings for a number of years. After this period, the ruling takes effect again, but parliament can again vote against it.

Although, like Israel, the UK has no constitution, many UK experts will agree that it does have a "constitution in the abstract" consisting of "various laws, customs and conventions developed over a long period of time." The UK Supreme Court has only existed since 2009 and cannot disapprove laws passed by parliament. Rights of political minorities are formally guaranteed by a division of legislative power between the House of Lords and House of Commons.

Another country where the highest court is not allowed to decide on the introduction of laws is the Netherlands. The Supreme Court acts only as the highest court in civil, criminal and tax cases. But unlimited power of the majority is countered by the existence of the Senate, which is elected by provincial governments in a stepped system. Also gives the Council of State mandatory legal advice on the quality of new legal texts.

The above comparison shows that the Israeli Supreme Court has exceptional power compared to similar institutions in other democracies, but also that the Supreme Court is the only body that curbs legislative power and protects the political minority.


Netanyahu's reform and the need for compromise

So - from a democratic point of view - Supreme Court reform is not a bad idea. Netanyahu's reform, however, is indeed a bad idea. Whereas the Supreme Court now fills in the gaps left by flawed basic laws, Netanyahu's reform ensures that those gaps are actually left wide open.

The main points of the proposal are: 1. Supreme Court members must unanimously agree to declare a new law 'unconstitutional'; 2. A slim majority in the Knesset - of 61 out of 120 members - is sufficient to overturn a Supreme Court decision overrideThe government gets a majority in the judicial selection committee; 4. The Supreme Court may no longer use "reasonableness" as an argument to disapprove a law.

The reforms turn the Supreme Court - in short - into a useless institution that can no longer do anything against the incumbent government. The power of the majority is thus unlimited and the rights of political minorities are no longer protected.

So how should it be done? There are quite a few ideas on that. Moshe Koppel - head of the think tank Kohelet Policy Forum - has opined that the Supreme Court be allowed to use reasonableness as an argument only in administrative law cases and not in new laws. Koppel also believes that a small minority of the Knesset should never be able to override a Supreme Court decision. Former minister Natan Sharansky Agreed Koppel's last point, stating that "democracy means that the majority rules, but there are individual rights that no majority should be able to take away." Furthermore, Sharansky believes that appointment of judges through the judicial selection committee does need to be changed.

President Isaac Herzog even came up with a detailed plan which represents an interesting compromise. First, Herzog wants to make it harder to pass a basic law and make existing basic laws more 'constitutional'. It should also start exploring options for a real constitution. According to Herzog, the judicial selection committee should be expanded to 11 members, with neither the incumbent government nor the judiciary having a majority. This will force commission members to compromise on appointments. Also, reasonableness should no longer be an argument when assessing government policies and appointing ministers. Under Herzog's plan, countervailing power for the legislative branch of the Israeli government is limited to the Supreme Court, but there are more checks and balances attached to that same Supreme Court. This will make Israel more democratic anyway.

Netanyahu should look for a compromise that a vast majority of Israel does support. Indeed, that compromise is certainly possible. That the Supreme Court needs to be reformed is now beyond doubt for many Israelis. A plan like Isaac Herzog's should therefore be seriously considered. After all, if Netanyahu will not go along with this, he risks civil war and instability in the Middle East and the rest of the world. The history books are usually not very positive about such a legacy.