Judicial reform: An urgent imperative

by Martin Sherman     July 5, 2023

For months Israel has been engulfed in a tumultuous public dispute in the titanic clash between the advocates of a direly needed reform of the country’s system of law enforcement on the one hand, and its increasingly strident opponents on the other.

According to the University of Haifa’s annual index for public sector performance, the public’s level of trust in the Israeli judicial system is at the lowest level since the index was first published in 2001.—i24News, Nov. 6, 2018.

After a decade in which left-wing voters expressed a 44 percent confidence in the judiciary, their confidence has eroded since 2017 to 25 percent in 2020.—Haaretz, Jun. 4, 2020.

Waxing evermore vehement and venomous, these opponents are engaged in a desperate last-ditch effort to preserve the remaining vestiges of their waning political power, by freezing the current distorted reality that still allows them—despite their minuscule (and diminishing) electoral support—to control much of the national decision-making process in Israel today.

A litany of travesties

The blatant arrogance and brazen double standards of the legal establishment in general, and the judiciary in particular, coupled with an increasing number of verdicts that fly in the face of common sense—and any commonsense perception of natural justice—have led to a steep and ongoing erosion in public confidence in the impartiality of the courts—including the Supreme Court itself. Indeed, the catalog of mystifying decisions is as long as it is disconcerting.

The following is a far from exhaustive list:

• The trampling of the right of the opponents of the 2005 Disengagement to protest;
• The disregard of the fact that the investigation against Prime Minister Netanyahu was launched in flagrant disregard of explicit legal requirements—not to mention a litany of brazenly improper (to be charitable) police/prosecution measures during the investigation itself;
• The discriminatory prohibition of demonstrations during the COVID-19 epidemic, preventing gatherings by the Ultra-Orthodox while allowing those by the anti-Netanyahu protesters outside his Balfour Street residence;
• The repeated overturning of government decisions aimed at stemming the flood of illegal infiltration on the country by African migrants, and the detrimental effect this was having on the lives and livelihoods of less affluent neighbourhoods in South Tel Aviv and elsewhere.

“Blaming everyone but itself…” 

Thus, the well-known social activist and left-leaning law professor Yuval Elbashan, warned as recently as last December: “Confidence in Israel’s justice system, once so high, has slumped, and the time has come for the system to stop blaming everyone but itself.”

Indeed, over a decade earlier, in a book entitled “Towards Juristocracy” published in 2004 by Harvard University Press, Ran Hirschl, Professor of Political Science and Law, at the University of Toronto, cautioned: “In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded.”

He cautioned “…as political arrangements and public policies agreed upon in majoritarian decision-making arenas [such as the parliament and/or government-MS] are likely to be reviewed by an often hostile Supreme Court… the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda…”

The current initiative by the newly elected government to enact a far-reaching reform of the legal system is thus, an inevitable result of the ongoing process of erosion of public trust.

Victims of judicial intervention in policy

But the appalling harm that the current system inflicts on Israeli society can take on far more tangible and tragic forms. Perhaps, the most horrific (and I use the term with careful deliberation) illustration of this is the following:

On May 2, 2004, a young social worker, Tali Hatuel, who was eight months pregnant with her fifth child, was driving home with her four children aged 2 to 11 years old.

On the way, they were ambushed by two Palestinian terrorists, lying in wait in some roadside building. From their hiding place, they opened fire on the young mother and her children, forcing them off the road. The terrorist then approached the vehicle and slaughtered all the occupants from point-blank range.

What is both staggering and infuriating about this appalling tragedy is that the army had intended to demolish the buildings, which afforded cover to the murderers, because they had been used previously by terrorists to kill both Israeli civilians and IDF soldiers.

However, the demolition was prevented by order of the Supreme Court, which, under today’s system, is the ultimate arbiter of what is “reasonable” and “proportionate” even in areas where they have no professional expertise.

The perils of unbridled authority with zero accoutability

Sadly,  Tali Hatuel and her four daughters paid with their lives for the gross judicial intervention into Israel’s security policy, while the judge(s), of course, suffered no repercussions for the horrendous consequences of their decisions.

But that is how things are when the judiciary has overriding authority, but zero responsibility.

Clearly, a stop must be put to this glaring travesty!

Dr. Martin Sherman spent seven years in operational capacities in the Israeli defense establishment. He is the founder of the Israel Institute for Strategic Studies (IISS), a member of the Habithonistim-Israel Defense & Security Forum (IDSF) research team, and a participant in the Israel Victory Project.