Yet for all their enthusiasm to protect the Supreme Court, the opposition to the proposed judicial reforms seems less interested in Israel’s judiciary as such, that is, as the branch of government that interprets and applies laws as part of the resolution of disputes or law enforcement. The legal basis and social acceptance of court decisions and public trust in the judiciary as a neutral arbiter of disputes are not relevant.
The focus of their concern, they say, is fear of a parliament and government run amok; “tyranny of the majority”, an eminently legitimate concern. Someone has to mind the shop, especially when a right-wing coalition steps inside.
They therefore see the need for a supervisory body, immune from democratic influence and which can veto decisions of the Knesset. This body should not be comprised of, or even selected by, wily politicians and the public, they reason, but individuals chosen because they are supposedly a step ahead of the common man.
In other words, in the name of democracy, they want to maintain the Supreme Court not merely as the highest court of appeals, but as an Israeli incarnation of the British House of Lords, in all its 19th century glory, when unelected elites reviewed and rejected laws passed by the unruly House of Commons.
And the Supreme Court does fit the bill. Despite the absence of a broadly approved constitution, the Court reviews laws and Government decisions. Its members are not chosen by the political branches but by a committee in which elected politicians and their representatives are a minority.
It is only a happy coincidence for the opposition, the political successors to the Israeli aristocrats of yesteryear and representatives of today’s elite, that today’s Supreme Court reflects the opposition’s own composure and outlook; a much greater coincidence that the judges and the opposition together can permanently control the Court’s composition.
(The judicial selection committee is composed of three judges, two Bar Association members, two Knesset members (one typically from the opposition), and two government representatives; the judges, Bar members and left-of-center political representatives vote together.)
The reforms, however, would remove the Court from the top of the political pyramid by giving the politicians the majority on the selection committee, and much as was done with the House of Lords in the early 20th century, giving the Knesset more or less final say in legislation.
This is not to belittle the need for checks and balances. The reality, however, is that Israel’s haphazard system of government already contains checks on both the power of government and parliament – especially when they are controlled by the right. Large amounts of power are deposited in various non-democratic state offices that for various reasons, like the Supreme Court, typically reflect the Israeli left. This includes the President, the attorney general, the chief of police, the legal counsels in each ministry, the army chief of staff, and in many cases the bureaucracy itself.
The Prime Minister does not have direct authority over ministries and it is the Cabinet, not the Prime Minister, that governs. The Government itself only rules with the confidence of a de facto absolute majority of the Knesset, which is often found lacking; the average government-lifespan is approximately two years. And because of the large number of political parties, coalition discipline too is difficult to maintain.
It is true that the danger of terrible and even egregious decisions cannot be ruled out; Israel’s political system has major flaws that are subject to manipulation. Nevertheless, the power maintained and exercised by the Supreme Court without even an indirect basis in the will of the public or its elected representatives is a form of the cold dominion exercised by the few over the many throughout human history.
Though touted by many brilliant persons, at its most benevolent, such power robs people of a fair say in their own lives and that of their country. It further lacks the public legitimacy necessary to sustain it. One can only imagine how the opposition might feel if it did not see its own reflection in the Supreme Court, but that of the right-wing coalition.
Fear of tyranny of the majority in Israel may be proper cause for additional checks and balances like bicameralism or a greater separation between the executive and the legislature, or district-based elections which better disperse power throughout the legislature.
It is not, however, a proper basis for the maintenance of a fundamentally undemocratic House of Lords, à la 19th century England.
Daniel Tauber is an attorney and Likud Central Committee member.