Aharon Barak's legacy continues to infuence Supreme Court decisions
Aharon Barak's legacy continues to infuence Supreme Court decisionsצילום: גיל יוחנן, POOL, פלאש 90

Based upon the reactions of opponents to the new Israeli government and in particular to its proposals for judicial reform, one would think that Israel is sliding into a dictatorship and the abolition of protections for individual liberties.

Such views are expressed by Yohanan Plesner in a recent article published in the Wall Street Journal, in which he derides the government’s proposals to reform the powers of the judiciary. His essential argument is that Israel’s Supreme Court is “the only check on the otherwise absolute power of any parliamentary coalition,” that the Israeli Supreme Court protects “the country’s Basic Laws…broadly recognized as chapters of a constitution in the making” and that the proposed reforms, and in particular the proposed override clause to permit the government to override a Supreme Court decision by legislative action, are fundamental threats to Israeli democracy.

At the same time, Mr. Plesner acknowledges the need “for redefining the rules of the game and strengthening the separation of powers” but chastises the Prime Minister “for not keeping with tradition that changes to a democratic regime should be made with the broadest possible public support” and failing to “reach across the aisle and work with his political opponents on a new constitutional arrangement.” [It is unclear if these traditions of broad public support he refers to include the adoption of the Oslo Treaty, or the Gush Katif expulsions].

In any event, Yohanan Plesner’s pronouncements of doom are misplaced, as he ignores several salient facts. The Israeli Supreme Court itself is a self-perpetuating institution whose membership is decided not by the legislature, as is the case in the United States and most democratic countries, but by the Court itself and the like-minded Israeli Bar Association, allowing for limited diversity of opinion. It has been labeled “the most activist supreme court in the world”. In parliamentary systems with no constitution, such as the United Kingdom, legislative override is not exceptional, and democracy in the United Kingdom continues to thrive.

The United States Constitution was adopted with a broad consensus, having been ratified by every state legislature. Constitutional amendments have been adopted by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. The so-called Basic Laws were in some cases adopted by the affirmative vote of less than a quarter of the Knesset, in one case by only 23 votes of the 120-member body. Thus, the supposed broad consensus for the adoption of such laws with constitutional authority is lacking,

Further, basic limitations on the US Supreme Court’s reach such as standing (whether a plaintiff has a right that is affected), and justiciability (essentially, excluding policy issues properly the subject of the legislature) are absent in Israel. The ultimate legal standard for review by the Court is not a constitution, not the legislature, and not even the Basic Laws, but rather, the Justice’s views of what he or she thinks “the enlightened community” believes (or should believe).

Thus, the judicial branch has usurped for itself, without consent of the Knesset or the public, supreme powers that do not exist in any other democracy and did not even exist within Israel during its first three decades.

Lastly, the “narrowness’ of the current coalition, although it has a clear majoority, is due to the abject refusal of the remaining parties of the left to negotiate with the Likud or recognize the legitimacy of the elected government. Mr. Plesner acknowledges it has always been Netanyahu’s preference, when able, to balance his coalition with left of center parties. To suggest that Mr. Netanyahu reach across the aisle ignores the reality that the opposition has adopted a scorched earth policy, in defiance of all prior norms, seeking to undermine the government and the state in foreign forums, both Jewish and non-Jewish, and through the promotion of nationwide disobedience of the law.

It is the abject refusal to respect the vote of the electorate that is the true challenge to Israeli democracy, and it is the continuing stonewalling of the left to engage in any meaningful judicial reform that has led to the current crisis.

Laurence S. Tauberis a practicing attorney in New York. This article is an adaption of a response, published by the Wall Street Journal in response to Yohanan Plesner, “The Case for a ‘Constitutional Truce’ in Israel”.