Reforming Israel’s Supreme Court

KFAR SABA, Israel — A new coalition to govern Israel will emerge in December. There’s been a hue and cry over the right wing/religious makeup of the coalition, especially from foreign governments. Among these fears are possible changes to Israel’s judicial system, especially its highest court. I believe that some changes are required to reduce the power of non-elected justices and return it to Israel’s elected members of Knesset.

Nearly all countries have some sort of high court, which works in tandem with the state’s leaders, be it a democracy or even a dictatorship. Israel is no exception. Its court system is similar to the British and American ones, but with its own idiosyncrasies. One glaring difference is that Israel’s highest court is supreme over its elected legislature, which has no recourse to the court’s decisions, unlike the division of powers in the U.S. Current efforts to redress that issue, undertaken in previous governments and expected in the new government, don’t threaten Israel’s democracy. On the contrary, sensible changes could improve it.

Israel’s Supreme Court is generally known in Hebrew as the bagatz (High Court of Justice). It has 15 judges, including the President of the Court. The term of a justice is not set, but in any case does not extend past the age of 69-70. Generally speaking, Israel’s Supreme Court decides cases in panels of three justices; however, a single justice may hear certain cases. In cases of high importance the Supreme Court can sit as an expanded panel, but always with an uneven number of justices to ensure a majority vote.

The U.S. court is based on the justices application of the 1789 Constitution to the pertinent issues. It’s possible to amend the Constitution by the approval of a majority of the 50 states. Since the adoption of the Constitution, it has been amended 27 times, including one amendment that repealed a previous amendment.

America’s Supreme Court is both a rarefied judicial body and a political creature. The president is the sole official to nominate a new justice, while the Senate is charged to approve or disapprove the nomination. In the 21st century, senators’ votes have become much more politically charged, with approval sometimes dependent on the vote of one senator. This was less common in the latter decades of the 20th century, when nominees were often approved by a large majority.

Importantly, there is no age limitation for justices. When a justice dies or retires, every post-WW2 president except Jimmy Carter appointed one or more new justices. This periodic infusion of new blood ensures that the court’s balance will be tipped one way or another over time.

In comparison, Israel’s Supreme Court is supposedly not political, because the Knesset has little say in approving its new appointees. All Israeli judges are appointed by the Judicial Selection Committee, an independent body comprised of three Supreme Court Justices (including the Court’s President), two cabinet ministers (one of whom is the Minister of Justice), two Knesset members, and two representatives of the Israeli Bar Association. By law, a new justice must be approved by at least seven of the appointments committee’s nine members.

Typically the three Supreme Court justices vote for someone who is an elite individual who would blend in with their group. It’s not surprising that the two Bar Association lawyers would favor the justices’ choices, because they often appear before the court and might aspire to the post themselves. Since just two or more committee members can veto a candidate, the justice/bar member combination of  five members can effectively blackball any candidate who doesn’t suit their preferences.

Politically, Israel is not currently a leftist/progressive country. Perhaps 10% of the population fit that description, while the majority are center-left, center, center-right, right, and religious right. From the state’s independence in 1948, for a whole generation, its leaders were left wing and often socialist. The next generation has usually been center or right and capitalist. However the Israeli Establishment, from whom most of the justices are chosen, harks back to Israel’s early liberal-socialist generations. (When I say socialist, it definitely doesn’t preclude members of the Establishment being very wealthy.)

Israel has no constitution to judge laws by. But starting in 1993, the bagatz members have taken upon themselves the job of creating their own quasi-constitution in the form of court-created Basic Laws. This was under the aegis of the President of the court, Aharon Barak:

“In the winter of 1992, the Israeli Supreme Court moved from a rundown former hostel in a crowded section of Jerusalem, its home for more than 40 years, to a sleek new courthouse near the other edifices of national government. The move took place the same year as the passage of the first Israeli statute [uniquely devised by the court] to guarantee a broad set of human rights. This piece of legislation, called ‘Basic Law: Human Dignity and Freedom,’ promised that ‘the life, body, or dignity of any person shall not be violated’ and that ‘the liberty of a person shall not be deprived or restricted through imprisonment, detention, extradition, or any other means.’ In retrospect, the new courthouse and the new law seem to have been made for each other: As a result of the court’s bold interpretation of the law, its power and importance have grown enormously, in keeping with its grand surroundings.” (Source)

From 1992 on, the court has created other Basic Laws, which cannot be nullified by the Knesset. Therefore, unlike a government with co-equal branches, the bagatz reigns supreme and has the ability to make declarations of all sorts with little recourse. There is no balance of powers such as in the US. The result is some outrageous court decisions, such as the prohibition of corporal punishment of children by their parents, no matter how light.

With the recent choice of Bibi Netanyahu to return to the premiership as Prime Minister, the right wing/religious parties in his coalition are demanding a change in the law which would give the Knesset, all of whose members are elected, a veto power over Basic Laws issued by the bagatz, whose justices are appointed, not elected.

This movement is not new and there have been gradual changes to the procedures of the court in the last few decades, especially regarding the choice of members of the Judicial Selection Committee. The probable next step will be for the new coalition to pass a bill allowing the rejection of a Basic Law with a majority vote of 61 (out of 120 Knesset members).

I’m in favor of the Knesset having some redress for bagatz Basic Law pronouncements and decisions. These decisions vest too much power in officials who have little or no connection to the public. However, I believe that a number higher than 61 would be more appropriate, because weighty issues shouldn’t be decided by a tiny majority. Perhaps 70 required votes would be a better number, but let’s permit the elected Knesset members to thrash it out. In any case, it’s hardly the end of democracy in Israel.