A degree of tension between the government and the judiciary is a sign of a healthy democracy. For the government to seek to control the appointment of judges and try to reduce judicial power is a sign of authoritarianism.
The constitution of each country is different. But among the basic principles of a democracy are that the government should not have unfettered power to enforce the will of the majority and that an independent judiciary has an important role in defending basic rights and the rule of law. These norms are as important in Israel as anywhere else. It has only a one-chamber parliament and is a complex society where the interests and demands of the various communities regularly conflict.
Israel has no written constitution, but it does have a series of basic laws, including one guaranteeing human dignity and liberty that was adopted in 1992. The Israeli Nation is founded upon the 1948 Declaration of Independence, which in part promises the development of a State “for the benefit of all its inhabitants… based on freedom, justice and peace as envisaged by the prophets… ensuring complete equality of social and political rights to all inhabitants irrespective of religion, race or sex…”
The country’s supreme court has interpreted such provisions as conferring power on judges to invalidate inconsistent laws approved by the Israeli parliament, as well as decisions of the executive. It has done so on many sensitive issues, such as upholding the rights of Palestinians and challenging exemptions from military service for some religious Jews.
The government of Benjamin Netanyahu, Israel’s prime minister, is proposing to take control of the committee of judges, lawyers, and politicians that decides on judicial appointments. It is seeking to severely restrict judicial oversight of the constitutionality of legislation. Not coincidentally, Netanyahu is facing criminal proceedings for alleged corruption.
The proposed legislation has been opposed by the supreme court’s president, Esther Hayut, and by her predecessors, Aharon Barak and Dorit Beinisch — as well as by many former judges, and by the vast majority of the legal profession in Israel. Defying the concerns expressed by Isaac Herzog, Israel’s president. The government secured a first reading for the proposed laws.
Netanyahu argues that other countries, such as the UK, do not allow for judicial supervision of legislation. This ignores judges, appointed independently of the government, that have a duty under various Human Rights Acts and similar legislation to do their best to interpret legislation consistently with human rights principles. Where that is impossible those same independently appointed judges can declare legislation to be in breach of those principles. Most democratic governments have always then legislated to respect such a declaration of incompatibility.
Statement on Judicial Reform in Israel
From District Court Judge Noel Sainsbury, President of Te Hunga Kaiwhakawa o Aotearoa, The Judges Association of New Zealand
The Israeli Nation is founded upon the 1948 Declaration of Independence, which in part promises the development of a State “for the benefit of all its inhabitants… based on freedom, justice and peace as envisaged by the prophets… ensuring complete equality of social and political rights to all inhabitants irrespective of religion, race or sex…”
The constitution of each country is different. But among the basic principles of a democracy are that the government should not have unfettered power to enforce the will of the majority and that an independent judiciary has an important role in defending basic rights and the rule of law. A strong and independent judiciary is indispensable to the rule of law. Government control of judgments by a Supreme Court undermines these founding principles and sorely challenges democracy.
JANZ wrote to our Israeli association with a message of support and solidarity.
JANZ expresses its concern about the proposed reforms to Israel’s legal system in a Bill currently before the Knesset, the Israeli Parliament, attempting to degrade the Supreme Court’s powers. The Supreme Court of Israel is the only check or balance upon the otherwise unqualified power of the Knesset. The proposed laws would severely restrict the power of the Supreme Court to review statutes made by the Knesset and permit the Knesset to override the Court’s decisions.
Consistent with the maintenance of the rule of law and judicial independence adopted in Israel’s founding documents, JANZ urges the withdrawal of the proposed legislation.