Israel’s democratically elected legislature, the Knesset, is in the midst of voting on a series of laws that would scale back the power of the unelected judiciary and place more power in the elected body. Tens of thousands of Israelis along with Israel’s usual detractors are up in arms, calling this “tyranny” and the “end of democracy.”
To start, those who continue to push the “end of democracy” narrative are objectively counterfactual, counterproductive, and over-reactionary. When a democratically elected body makes efforts to wrangle back power from those appointed by a committee controlled by the Bar Association and the judiciary itself, it is, in fact, putting more “power” into the hands of the “people.” In simple terms, making the political system more “democratic.”
Democratic governments around the world take many different forms, from constitutional republics, like the United States, to parliamentary systems, like the United Kingdom, and many variations there between. Israel is just shy of 75 years young, and is still in the nascent stages of forming what its democracy will look like. For instance, while its founders set out to form a constitution, none has yet been put in place. The entire process the democratically-elected government is going through is at the very core of democracy.
While it’s hard to see it through the hysterics, Israel’s proposed judicial reforms are, in fact, imperfect in their current state. However, this is the case when most laws are initially proposed. This is why there is a process, in most (or all) democracies in the world, Israel included, that allows for debate, input, discussion, and ultimately amendments. Those opposing the judicial reforms would be better served by pushing for constructive dialogue rather than destructive protests. Calls for the Knesset to change direction simply because of the nightly protests should fall on deaf ears, as a well-functioning government should never cave to what would essentially be mob rule.
Taking a quick step back, the proposed judicial reforms aim to accomplish five things: (1) Changing the process of selecting judges, so as to give the governing coalition of the Knesset a majority in the judicial selection committee; (2) Prohibiting the Supreme Court from making decisions based “on reasonability” rather than on laws passed by the Knesset; (3) Changing legal opinions of general counsels of government departments, appointed by the attorney general, from binding to advisory; (4) Raising the standard for the Supreme Court to strike down a law passed by the Knesset to 11 out of the 15 judges; and (5) Providing the Knesset the capacity to override a decision by the Supreme Court that strikes down a law passed by the Knesset with a majority of the Knesset members. Of course, the proposals are more nuanced than the above-outlined, but these are the general strokes of the proposals.
That judicial reforms are needed is the broad consensus view. The self-elected judiciary has become hyper-political, if not hostile, to the government, to the ultra-Orthodox, and to the conservative majority. The Supreme Court has also unilaterally expanded its own power by granting itself powers of judicial review and making key decisions based on its subjective interpretation of “reasonability,” and general, undefined concepts of dignity and liberty. The impact of the Supreme Court’s rulings is even more far reaching, given that the Israeli Supreme Court is a Court of first instance, in that almost anyone can file claims directly with the Court on a host of issues. At bottom, an unelected branch of government has run amok and the Knesset is looking to rein it in through these reforms.
The only truly controversial or delicate provision in the proposed reforms, in my opinion, is the “override clause.” The fact that the Knesset is seeking to include an override clause is not a problem per se. Given the past relationship between the branches, and the importance given by the elected body to ensuring that those elected by the people have final say on critical issues, the ability to override the Court’s decision makes sense. Israel would not be alone in implementing an express “override clause.” Canada, a country which no one would seriously charge as “non-democratic,” has a similar law, which permits the Parliament to pass a law “notwithstanding” their Court’s having found that law to be unconstitutional.
Still, for purposes of political stability, which is critical for the social and economic well-being of any nation, the issues which should qualify for override should be very limited and an override should only pass with a supermajority of the Knesset. These limitations would all but guarantee that the override would only be used sparingly and could not be abused by any party to satisfy the political whims of the day.
Finally, the governing coalition should learn from the mistakes of the Democrat-controlled U.S. Senate in 2013, when they removed the 60-vote filibuster for the president’s nominees, requiring only a simple majority instead. This was a shrewd move in the short term to get President Obama’s nominees seated, but when control of the Senate shifted back to the Republicans, Democrats quickly regretted that the Republicans could pass through the president’s nominees without the support of a single Democrat.
In Israel today, it is hard to see when and how the political Left could return to power. But, politics lives on a pendulum, and when (not if) political control inevitably shifts in Israel, those in control of the Knesset today will regret having a law in place which requires only a simple majority to override the Supreme Court.
At the end, the Likud party and its coalition partners should not make any decisions based on the hysterical protests and threats of its detractors. Still, the government shouldn’t rush through the reforms without robust and honest debate about its impact. Particular care should be taken to limit the override clause so as to protect the integrity of the Supreme Court while providing the supermajority of the Knesset the ability to have final say on critical issues that go to the heart of the Jewish and Democratic State of Israel.
Gabriel Groisman is a partner at LSN Partners in Miami, Florida, a Jewish rights leader and the former mayor of Bal Harbour, Florida
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.