Strengthening the separation of powers in Israel's governement

Tension between the three branches of government is healthy. Judicial activism has harmed the executive branch’s abilities – and also undermined the underpinnings of the law as absolute, turning it into something ephemeral.

Minister Betzalel Smotrich, | updated: 10:13

OpEds Chairman Smotrich
Chairman Smotrich
Flash 90

Newly-appointed Minister of Transportation MK Betzalel Smotrich opened the judicial panel at the Ariel University 29th Annual Conference on Judea and Samaria’s session on the Judicial Override Clause this past Thursday. The session, produced and chaired by the Adam v’Adamah Research Institute, a Regavim project, afforded Smotrich his first opportunity to address the public since his recent appointment as a minister and cabinet member  in Israel’s  transitional government.

Smotrich spoke at length about the need for balance among the branches of government, promising  to make this topic a central issue in the upcoming election cycle, and predicting that it will be a core issue in the coalition negotiations for the formation of the next government.Arutz Sheva brings you his words below.

Min. B. Smotrich at Ariel U. Conference
Credit: Regavim

It is a fundamental mistake to speak about the tension that exists between the Knesset, the government, and the Supreme Court as a  threat to democracy. Our democratic system is built on separation of powers between the three branches, which presents a challenge for every democratic society. Each and every democracy deals with this tension, albeit with different nuances. As a point o departure, this tension is positive and healthy.


The notion that jurists are devoid of personal opinions, that Supreme Court justices make decisions regarding the other systems of society mechanically, that they are super-human or angels – that is a problem.
De-legitimizing the separation of powers will necessarily and unavoidably harm one branch of government or another. The first principle must be that the branches of government challenge one another, and precisely because they do, they balance one another.

When one branch of government takes advantage of the intellectual legitimacy it accrues from the  public to challenge the other branches, the other branches necessarily suffer from delegitimization, and this weakens the democratic system. The notion that jurists are devoid of personal opinions, that Supreme Court justices make decisions regarding the other systems of society mechanically, that they are super-human or angels – that is a problem.

I believe in dialogue and I welcome this tension, but I want it to be carried out on an equal footing, and I especially want it to be based on concrete foundational principles and on a realistic perspective of our situation, of human nature, and of the world we live in.

I have no personal criticism for the jurists themselves. “They act in accordance with their conceptual framework and believe that they are carrying out a ‘sacred’ task. But the tendency to expand circles of influence, responsibility, and power -  even at the expense of others - is a  fact of human nature and organizational psychology. Everyone thinks that he or she knows  what is best for society and seeks the power and the ability to promote that subjective understanding of what is good and right. We must recognize that this is the source of the tension between the branches of government.

One of the main failings of the present judicial conception is that ‘law is mathematics.’ The doctrine of judicial activism contends that it is appropriate to consider every subject through the prism of the law, and this has caused tremendous damage, both to the real world and to the judicial system. Why? Because the world of law, by its nature, is a world of clear,  sharp contrasts. It a world of black and white, permitted or forbidden, legal or illegal, innocent or guilty. But we all know that the world is rarely so clear-cut; there are complexities that require flexibility. Not every situation can be evaluated in legal terms.

Reality demands a flexible approach. We are human beings, and not everything can be made to fit pre-set criteria. While it is clear that we cannot do without these criteria … there is a middle ground between these two extremes. 

[Former Supreme Court Chief Justice Aharon Barak's] Judicial activism destroyed the judiciary, because at the point where the absolutes of law bump up against the flexibility necessary to contend with real-life situations, at the end of the day you have no choice but to bend the clear-cut nature of the law and force it to conform to fluid concepts, uncharted territory, grey areas. Decisions begin to depend on the particular judge hearing the case. In this state of affairs, the entire executive branch is set into a tailspin. It is unable to plan, and spends its days in court. On the other hand, of course, the attempt to bend reality to fit clear-cut legal concepts causes serious harm to the fabric of life itself.

If you read Nomi Levitsky’s “The Supremes” about the justices of  Israel’s Supreme Court, I’m afraid you may lose whatever shreds of trust you still have in our judicial system, Levitsky is not a right-wing author, but her expose’ reveals the complex picture that is Israel’s Supreme Court, complete with pressures, impulses – the things that prove that the people sitting on the highest bench of our judiciary are mortals, no different than you and me.

The minute you extend legal concepts to all aspects of life, you let personal agendas in. Agenda is not a dirty word, but in a democracy the people set the agenda, the voters set the agenda when they elect their representatives.

The purpose of the adjustments or corrections we are hoping to enact - the system of adjustments of which the Judicial Override Clause is only one element,  and not necessarily the most important element - is to restore the health and vitality of our democracy and to restore the proper, healthy balance among the three branches of Israel’s government. There are additional challenges that must be faced in order to create better balance between the legislative and the executive branches, but currently, both of these branches of our government are subjugated by the judicial branch – and that is a  situation that cannot be allowed to continue.

This subject was at the very heart of the previous election campaign, and so it will be in the present election cycle. It’s not just a campaign slogan, it’s a commitment to the operational plan we will promote, with God’s help, in the next right wing government that will be formed after the coming elections. Our job is to do everything in our power to see that a right wing government is formed – without Liberman, who irresponsibly torpedoed the formation of a right wing government in recent weeks. The new government must promote a mutually agreed-upon basket of vital reforms. We will push for this as hard as we can, and God willing, we will be the swing vote that will ensure these reforms are implemented.

Translated by Naomi Linder Kahn, Director International Division, Regavim.




top