Israel's Proposed Judicial Reform - Would It Really Be The End Of Democracy In Israel? Part II

Here are some highlights of the proposed changes.  1.  Appointment of justices.  Currently, there is a selection committee made up of 9 people.  Three are High Court justices, two are members of the bar, two are Knesset members and two are ministers.  For lower court judges, only a majority vote is required.  For High Court justices, an affirmative vote of 7 of the 9 is required.  Given that the High Court justices tend to be left wing, they alone can prevent a conservative government from being able to get their choices appointed to the High Court.

The proposed change is for a committee of 11 members, consisting of the Minister of Justice, 2 other ministers appointed by the government in power, the chair of the Knesset Constitution, Law and Justice Committee, the chair of the Knesset State Control Committee, the chair of the Knesset Committee, the President of the Supreme Court, 2 other judges from the High Court and 2 public representatives chosen by the Minister of Justice, with at least one being an attorney.  

Seven votes would be needed to select a justice to the High Court.  With the government being able to select 8 of the committee members, the 3 left wing justices would not be able to block a conservative government from appointing conservative judges to the High Court.  And therein lies the rub.  The overwhelming majority of those protesting are no doubt leftists.  They are disturbed that elected officials (members of the Knesset) will be able to appoint justices.  That is supposed to be the end of democracy in Israel.  If they're interested, elected officials in the US are the ones who appoint and approve federal judges, including for the Supreme Court.  And the Left here acted as if it was the end of democracy when the Republican Trump was able to nominate 3 justices to SCOTUS.  That is why they came up with all kinds of allegations against the Trump nominees.  

2.  Judicial Review.  Ever since the 1803 decision in Marbury v. Madison, the Supreme Court established for itself the right of judicial review - the right to declare statutes and administrative actions to be unconstitutional.  The Constitution did not expressly afford that right to the Supreme Court.  There was a similar case in Israel giving their High Court the same right of judicial review.  The current proposal would not allow the High Court to declare any of Israel's Basic Laws to be invalid.  

That makes sense to me.  It would be as if the Supreme Court here could declare a constitutional provision to be invalid.  However, the proposed change does go one step further.  If the Knesset passes a law that might be contrary to a Basic Law, it would require a full quorum of the High Court (not just a panel) to consider the validity of such a statute.  And it could only be declared invalid with a vote of 80% of the court.  I can see why people might object to that provision.

3.The end of the "unreasonableness" standard.  The High Court justices have taken it upon themselves to declare certain government actions to be "unreasonable" and therefore invalid.  They can do that if they believe the government has failed to consider fundamental values and human rights.  That is far too broad a standard.  It essentially allows the High Court to weigh the wisdom of government actions.  The people elect members of the Knesset, and those elected officials decide what is good for the country.  Absent a clear violation of the Basic Laws, the courts should not be making those decisions.  (Yes, there are exceptions in the US, especially where certain government actions do not meet the "strict scrutiny" standard as applied to discrimination.  However, the "unreasonableness" standard is simply too broad.)

4.  The override provision.  Arguably, this is the most controversial of all the proposals.  Just as SCOTUS interprets our Constitution, the High Court in Israel interprets their Basic Laws.  The proposed change would allow the Knesset to reject the court's interpretation, and also to allow the Knesset to overturn a High Court decision declaring a law invalid.  The procedure is somewhat complicated.  In certain instances, the Knesset may override the court decision by a majority vote (61 members).  In other instances an override could only occur if 2 Knessets agree on the override.  

In other words, just as we are now in the 118th Congress, which is for two years, there would have to be an intervening election, with a new Knesset, also agreeing on the override.  

(Most of the information above from an analysis on Wikipedia.)

Israel's Proposed Judicial Reform - Would It Really Be The End Of Democracy In Israel? Part I

Some of you may have been following the street protests in Israel over the Netanyahu government's proposed reforms to their judicial system.  People have been out in the streets in the tens of thousands and even hundreds of thousands.  Before doing my research on this issue, I admittedly had a viewpoint.  First, the Israeli High Court has a reputation for being one of the most leftwing in the Western world.  Second, who is doing the objecting?  It is overwhelmingly the Left - in Israel, in the Biden Administration and in other Western countries, our mainstream media and Leftwing Jewish organizations in the USA.  Why?  Because the conservatives are in control of the government.  Sound familiar? 

Third, as I have said before, the Left is the same everywhere.  They use the same language.  When Donald Trump was able to appoint 3 justices to the Supreme Court, the Left went crazy.  Because of the "threat to democracy," the system needed to be changed according to many on the Left.  Term limits for the justices.  Increasing the size of the Court so that Biden could appoint a sufficient number of new justices to restore control of the Court to the Left.  The Left believes they should have the sole right to control the Courts.   

Some background.  Israel does not have a formal written constitution.  It has a series of "Basic Laws" that form the equivalent of their constitution.  These laws cover everything from the organization and powers of the government, to individual human rights.  

There are Basic Laws describing the function of the Knesset, Israel's parliament; as well as describing the role of the president.  (In the US, the president is both the head of the executive branch and the head of state.  In Israel, the prime minister is the head of the government and the president is the head of state.)  

The Basic Laws give the government the power to print currency, make payments and establish a comptroller.  The Israeli Defense Forces are deemed to be the sole legitimate military force for the country, and is under civilian control.  (Without getting into the details, during the British control of Mandatory Palestine, there were various Jewish militia groups fighting to protect the Jewish people of Palestine.  During the war for independence, P.M. Ben Gurion ordered an attack against a ship controlled by the Irgun, one of those militia groups.  Therefore, designating the IDF as the sole legitimate military force was of some significance.) 

The Basic Laws also declared Jerusalem to be the capital city of Israel, and gave all religions rights.  The Basic Laws also affirmed everyone's right to pursue the occupation of their choice.  Certain human rights were also enunciated, including the rights to travel, to speech, and to be free from unlawful searches.  

The judiciary was also established, including procedures for appointing judges.  

The most controversial Basic Law was a relatively recent one from 2018.  Of course, the protests came from the Left and their allies in the Western world.  This Basic Law declared Israel to be the nation state of the Jewish people.  (People who protested were apparently not offended by the 56 Muslim countries, at least 26 of which have Islam as their official religion.)  This 2018 Basic Law made Hebrew the official language of Israel.  However, Arabic has a special status, and is on all currency along with Hebrew.  (Who believes a future Palestinian state would put Hebrew on their currency?)  Finally, this Basic Law established the official national holidays and national symbols.