Curtailing the powers of Israel’s Supreme Court will make the country more democratic, not less

Precautions must be taken when the checks and balances that are there to protect democracy tip too far in the other direction. Israel's Supreme Court is no exception

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Israeli democracy won't be harmed by reform
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Tom Wilson
On 25 April 2012 15:17

After over a decade of talking about it, reform of Israel’s Supreme Court is finally on the agenda in a serious way as part of moves that would give Israel’s elected Parliament greater independence from the interference of Supreme Court judges. Yet what is rapidly becoming apparent in the increasingly fraught debate over this issue is that the Israeli Left, the self-titled guardians of Israeli democracy, has very little interest in democracy at all, not when it threatens to overturn their disproportionate channels of power and influence.    

Ever since the mid-1990s when Aharon Barak took over as president of the Supreme Court this institution has been notorious for its political leanings and the way in which it has used its power to shoot down perfectly legal legislation voted on in Israel’s parliament.  It has used its powers to interfere on the tiniest of details, overruling the Israeli government and Israel’s defence forces on numerous occasions.

What is more, the Supreme Court is entirely self-appointed and under Aharon Barak this power began to be used to promote those who share the sitting Judges’ Left leaning ideology while blocking those who don’t echo such political views.  

Naturally, the suggestion that the Knesset (Israel’s parliament) might be given some partial vetting role in the selection of members of the Supreme Court met with wild, almost hysterical opposition from the then president of the Supreme Court Dorit Beinisch. Yet the existing state of affairs only serves to undermine Israeli democracy by eroding public faith in the ability of the electoral system to bring about change and institute the policies the public favour, while the self-appointed Supreme Court remains unelected, unaccountable and seemingly all powerful.

There is, however, some hope that this could be about to change with the proposition of a bill by Justice Minister Yaakov Neeman that would give the Knesset the ability to reinstate laws overturned by the Supreme Court, provided a strong majority of parliamentarians voted in support.  

As far back as 2004 a public commission recommended that if at least 70 of the Knesset’s 120 members voted in favour of reinstating legislation that had already been cast aside by the Supreme Court then parliament’s decision should indeed take precedence. Further moves came in 2006 and 2008 to try and institute such reforms, but unsurprisingly the Attorney General of the time went to great lengths to try and prevent any such changes.

Now, the primary opposition to these moves to hand power back to Israel’s elected parliament come from Israel’s ever alarmist and reactionary Left.  In a sense this is only natural, for while the Israeli electorate have consistently rejected the far-Left parties at the polls, the views of these parties still manage to exert considerable influence over the country via the Left’s patrons in the Supreme Court.  Predictably then, judges on the Supreme Court have spoken out fiercely against attempts to introduce any monitoring of or limits to the foreign funding of the powerful network of Left-wing NGOs that operate inside Israel. This is to be expected, for in this self-serving reciprocal relationship the Supreme Court’s activist judges rely on these very same NGOs to file the requests necessary for the intervention against Israel’s government, defence forces and parliament.  

The need to impose an agenda lacking popular support through a channel of power lacking a democratic mandate leaves the supposedly pro-democracy Israeli Left in a quandary of course.  The response to this seems to have been an attempt by Israel’s Left-wing commentators to turn the very meaning of the word ‘democracy’ on its head, a position best encapsulated by a recent opinion piece by Sefi Rachlevsky for Ha’aretz.

Rachlevsky seats his whole argument in the claim that these reforms are nothing but an attempt to ‘end democracy’; the unthinking and disingenuous response of the Israeli Left to almost everything the current government proposes to do.  Yet, Rachlevsky’s real contempt for democracy and the will of the voters soon turns out to be only very loosely veiled.  He tells us that the Supreme Court must have unlimited powers to intervene in legislation so as to control what he disdainfully refers to as the ‘recklessness of the Knesset’.

Rachlevskey attempts to justify his position by arguing that these unchecked powers of the Supreme Court are what he describes as the ‘mechanism to fight the tyranny of the majority’.  But of course when Rachelevsky says ‘tyranny of the majority’ what he really means is the democratic will of the electorate, something he clearly rejects.

And before employing such a phrase Rachlevsky would have done well to have familiarised himself with Alexis de Tocqueville’s writing on the subject of ‘the tyranny of the majority’. For as de Tocqueville explains the tyranny of the majority refers not to the democratic right of peoples to elect their own governments and laws, but rather to the dangers of the popular opinions of the majority stifling independent thinking, free expression and free debate – which is why it is more than a little ironic that Rachlevsky concludes by stating flatly that the issue of reforming the powers of the Supreme Court must not even be debated, an astonishingly totalitarian statement even for a representative of Israel’s far-Left.

That Israel’s Left demands that this issue must not even be discussed is an indication of just how much of a threat they realise it is to their monopoly over lawmaking. Yet this is a simple question of whether you think the Israeli public and their elected representatives should govern Israel or whether you believe a group of self-appointed judges should govern Israel.

When the checks and balances that are there to protect democracy tip too far in the other direction, so making unelected institutions political power bases in their own right and impeding the democratic process, then precautions must be taken. Those who are genuinely concerned with defending democracy will support such a rebalancing of power.

The Israeli Left, however, knows that this will challenge its own privileged positions of influence and so has instead chosen to call out reforms for democracy as the very opposite of what they actually are. 

Tom Wilson is a political analyst and a doctoral student at University College London

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