Israeli Supreme Court

[Hazir]

Is there anybody here who's able to give a concise explanation of what is going on in Israel? Because so far all I read in the Western media I consume about it is hella confusing and leaves me with the feeling it was high time that the powers of the court were curtailed. And that far from destroying democracy the new law is taking away powers from a bunch of unelected judges and puts it back in the hands of parliament.

[Loki]

The Israeli judiciary was the only institution committed to the rule of law. That meant forcing the government to maintain a semblance of legal protections for Israeli Arabs and Palestinians and the only ones trying to punish corrupt politicians. And this is precisely why Netanyahu - who's been facing jail time for years - went after them. The issue is less the precise proposals than the fact they're clearly timed to allow Netanyahu to stay in power and for his for right allies to destroy whatever is left of Israeli Arab and Palestinian legal protections.

[Hazir]

Well, that totally didn't make it easier to understand. When I read in the New York Times that the supreme court might now attempt to strike the law down, my first reaction was that indeed it needs to be reined in.

[wiggin]

Is there anybody here who's able to give a concise explanation of what is going on in Israel? Because so far all I read in the Western media I consume about it is hella confusing and leaves me with the feeling it was high time that the powers of the court were curtailed. And that far from destroying democracy the new law is taking away powers from a bunch of unelected judges and puts it back in the hands of parliament.

Well, that totally didn't make it easier to understand. When I read in the New York Times that the supreme court might now attempt to strike the law down, my first reaction was that indeed it needs to be reined in.

Hazir, I will do my best to explain a complex situation. Netanyahu's government has proposed a whole raft of changes to the way the judiciary works in Israel. These changes range from reducing or eliminating the power of judicial review of laws, allowing a legislative override of judicial decisions with a simple majority, changing the way supreme court justices are appointed, and many more changes. There are multiple purposes behind these changes, among them:

1. Netanyahu is interested in staying out of jail on a variety of corruption charges, and curtailing the power of the judiciary will help him do that.
2. Settlers (who form some key demographics supporting Netanyahu's coalition) do not like many of the stances the Israeli Supreme Court has taken on settlements and land rules in the West Bank, among other issues that are relevant to them. They would like to change the composition and power of the court to allow their desired policies to proceed.
3. Haredi parties would like to curtail the Supreme Court's ability to interfere in religious matters, not least dealing with the Haredi monopoly over most religious legal issues (kosher food, family law, etc.) but also religion/state issues (like whether stores and public transit can be closed on the Sabbath) and the exemption of Haredim from the draft. These are all important issues for Haredim but I question whether they would go for this alone.

There is also a much broader feeling in right wing circles that the Supreme Court is undemocratic and unfair. It was set up by the liberal Ashkenazi elite and is arranged such that it can perpetuate itself in the same mold - the judges essentially appoint themselves with little input from political leaders and currently wield fairly broad and poorly defined powers (given the hodgepodge of Basic Laws that form Israel's de facto constitution).

IMO it would not be unreasonable for a thoughtful, incremental, and consensus driven set of changes to be introduced to the judiciary. Nothing as egregious as many of the proposals on the agenda right now, but things like greater say by elected leaders in the appointment of Supreme Court justices, or ways to better balance executive vs. judicial power. It's not clear that the executive is weak, though - as a parliamentary system, the executive has a great deal of power and the legislature effectively does not act as a check on the executive. So care must be taken, especially given the fractious and unstable nature of most elected coalitions in recent years.

This is not what has happened, of course. The coalition tried to ram through a massive package a few months ago that included many of the most incendiary bits. It fell apart when a key Netanyahu ally (Yoav Gallant, the defense minister) openly questioned the wisdom of continuing, was summarily fired, and then was brought back when the already vociferous protests became even more widespread and damaging. Since then, they have dramatically scaled back their ambitions for the time being.

So far there has been one law passed not directly related to the 'overhaul' - a law limiting the ability of the court to force a PM to recuse himself from specific actions for, example, being on trial for corruption. This law (framed as a Basic Law) has been used to allow Netanyahu to participate directly in the judicial overhaul efforts as he is shielded from recusal. It has also been challenged in the Supreme Court - the Attorney General for the government has asked the Supreme Court to strike it down, which may be problematic since the power of the court to strike down a Basic Law is still untested. (Why would the Attorney General do this? It's because the position is essentially an apolitical bureaucratic role, rather than what AGs do in the US. It's still embarrassing for Netanyahu, though.)

This week, another law was passed, one that engendered a great deal of concern. It's called the 'reasonableness law' and is pretty esoteric. AIUI, it has to do with a specific standard the court has traditionally been able to use for review of administrative law. This is not talking about laws passed by the legislature, but policies and decisions made by elected ministers in the government as part of their executive duties. One of the doctrines that has been used to review ministerial decisions and appointments has been 'reasonableness', which has a fairly abstruse and somewhat fuzzy definition that you can read in the link below. The law just passed removes this standard from the Court's repertoire for ministers. This will likely limit how much the Court can review administrative law decisions, and may particularly politicize appointments and dismissals from currently nonpartisan positions (including the AG). Its a pretty narrow issue but still has some concerning ramifications. This law has also been challenged in the Supreme Court (which, again, has yet to strike down a Basic Law but may choose to do so now under some untested legal theories) and will likely be heard in the coming couple of months.

https://en.idi.org.il/articles/50104

I think that it is reasonable for opponents of the judicial overhaul to be deeply concerned about these developments not because they are themselves the end of Israeli democracy, but because the stated ambition of the coalition for future changes to the law could lead to a substantial loss in democratic freedoms over time. The protesters have taken a maximalist approach, but this is not unreasonable given that repeated attempts by Herzog and others (including from Netanyahu's own party - Reuven Rivlin among many others) to work out some sort of compromise have been met with indifference by the coalition. Widespread unrest by large numbers of protesters, widespread refusal to serve by important and prestigious reservists (e.g. pilots, special forces, etc.), and a broad sense of concern in the business community have so far slowed or stopped most of the more egregious proposals. But it is far from clear that this has done more than delay the government's goals. It is indeed a very concerning time for the State of Israel.

[Hazir]

Thanks for your explanation. Do I understand it correctly if I summarize it as; the legal system of Israel is deeply flawed but functions as long as there's a consensual relationship with the organs of state over the functioning of the state. But, that if such consensus is lacking the regular functioning of the court may easily be interpreted as judicial overreach. Thus, there are good reasons to reform. There are serious reasons though to suspect the present government has ulterior motives over improving the legal system, potentially ending is a worse legal system. The opponents of the changes are right in their suspicion, but not necessarily right in their rejection for the need for change.

This is my understanding of what you wrote. Is that more or less what you tried to express?

[wiggin]

Your summary is broadly accurate. I would not say that the legal system in Israel is 'deeply' flawed, but certainly it could be described as flawed.

Also, it's not 'serious reasons to suspect' that the present government has ulterior motives, they say it outright. And the 'reforms' they are proposing would not fix the flaws in the court, they would strip the court of most of its powers and dramatically strengthen the executive.

So is some adjustment to the way courts work in Israel warranted? Yes. Is this set of changes appropriate or well intentioned? Hell, no.