Straight talk: Israel’s need for judicial reform

Israel’s court rules on economic, security, political and demographic issues. And it is chosen undemocratically. Op-ed.

By Barry Shaw, INN

Much has been said and written recently about Israel’s new government pushing judicial reforms.

The incoming government views past decisions taken by Israel’s Supreme Court as undemocratic and autocratic rulings which, they claim, have been politically biased interference in the business of government for several years.

The origins of their complaint stems from the intrusion of Judge Aharon Barak who became the President of the Supreme Court.

In Israel, the President of the Supreme Court is not elected to office. The “democratic process” for promotion to that position depends on years on the bench, seniority rather than competence.

The most senior justice is designated President of the Court, and the next senior justice becomes Deputy President.

Things changed when Aharon Barak, the senior in line, ascended to the presidency on the retirement of the previous President, Meir Shamgar, in 1995.

He became the most pro-active chief justice and his decisions were of a decidedly leftwing persuasion.

Barak was instrumental in expanding the power of the court and used it to reject certain laws passed by elected governments in Israel’s Knesset, usually those led by the Likud, although Israel has no constitution on which to base that rejection.

One non-political example:

In March 2016, Israel’s Supreme Court, hardly a place of economic expertise, ruled against a landmark deal to develop and export the country’s offshore gas reserves, a setback for Prime Minister Benjamin Netanyahu, who had campaigned for it.

The panel of judges led by Aharon Barak claimed that the contract gave energy companies pricing and regulatory stability for ten years regardless of potential shifts in the government.

The main stakeholders in the fields, U.S.-based Noble Energy Inc. and Israeli partner Delek Group, had argued that the stability clause was required for them to make the massive investments necessary to develop the fields. These investments included vast sums of money in exploration, the manufacture and delivery of oil rigs, and the deep drilling required for maritime natural gas extraction.

The energy companies had already been through several rounds of regulatory and legislative hurdles that significantly delayed the project.

Benjamin Netanyahu said at the time, “The Supreme Court’s resolution severely threatens the development of Israel’s gas reserves. Israel is seen as a country with exaggerated legal interference that makes doing business hard.”

He also posted on his official Twitter account. “We will seek alternative ways to overcome the serious harm inflicted on Israel’s economy by this hard-to-understand resolution.”

The court’s interference rippled throughout the Middle East at a delicate time for Israel that was trying to extend the hand of friendship to neighboring Arab countries.

The Middle East Arab business news outlet Albawaba headlined, “Israel Court ruling jeopardizes regional gas exports deal.”

Reasonableness – to whose mind?

The Israeli Supreme Court has introduced the strange phrase of “Reasonableness” into the Israel legal jargon which is, according to David Weinberg, Senior Fellow at The Kohelet Forum, “authoritarian jargon which allows High Court judges to elastically apply their own sensibilities and socially re-engineer Israeli society in their ‘enlightened’ image.”

Aharon Barak, as President of the Israeli Supreme Court, held sway over laws passed in the Knesset going back twenty years.

The court’s counter decision on Israel’s offshore drilling project is just one of many that negatively impacted Israel’s economic and social security.

The infiltration tsunami

Since 2007, Israel suffered from an endless tsunami of economic migrants entering Israel across a fenceless southern border with Egypt. The situation became untenable for the geographically tiny Israel. Parts of major towns like Tel Aviv were swamped, mainly in the already suffering lower class areas in which poor Israelis became outnumbered by total strangers, and the local police had to deal with the outbreak of crimes such as theft, drugs, and rape.

The Likud Government took it upon itself to protect the country from this endless flow by constructing a southern border fence.

This security requirement was stopped by Aharon Barak at the behest of leftist groups. By the time that permission was given to the Government to continue to erection of this security fence Israel had been swamped by tens of thousands of illegals, not refugees, looking for work that in many places was not available, before the border fence was completed in 2017.

The conductor

Aharon Barak famously, or infamously, described Israel’s legal and judicial system as “an orchestra of different musicians” with himself as the conductor, and therein lies the rub. Barak saw himself and the court, appointed rather than elected figures, as the sole conductors, the final arbiters, of decision making and laws in Israel.

Choosing future judges

When the current government chose to challenge what they see as the undemocratic imposition of non-elected judges, the Lapid-Ganz led opposition drove their supporters onto the streets to protest the new government’s intention to create a new judiciary panel which would have the ability to propose and vote for future judges.

The opposition finds this objectionable, calling the move undemocratic.

But is it undemocratic?

Let them look at the Mother of all Democracies – the British model.

It is illuminating what the British Parliament has to say on this issue.

According to the U.K. Parliament website;

“Parliamentary sovereignty is a principle of the UK Constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law.

Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”

To confirm this opinion, I went to the other side of the globe to check another democracy with even fewer citizens than Israel.

In New Zealand, their Justice Ministry tells us that, “The judiciary cannot interfere with decisions of Parliament such as the decision to pass a law.”

So Lapid and Ganz – calm down and call off those mostly uninformed chanting supporters and give democracy a chance even if, politically, it is not in your favor.

The new government that came to replace them is conforming to the same standards as Britain and New Zealand, democracies that have existed longer than Israel.

There are protesters in Israel waving banners calling Benjamin Netanyahu the “crime minister” falsely accusing him of wanting to select his own judges, to them an anti-democratic act.

But have a look at the United States:.

Who selects judges to the Supreme Court in America? It is not the President of the Supreme Court. There is no such animal in their system. It is not a panel of exiting judges. It’s not the Senate.

The person who appoints new judges to the US Supreme Court is one man, the President of the United States as the leading political actor in that country.

It is the same in Europe, in Germany, France, Switzerland, Denmark, Spain, Portugal, Belgium, Japan, Holland.

Those who would suggest this is anti-democratic will be whistling in the wind.

It is clear that a Republican president would select a judge that may be biased toward his political bent but, with the passage of time (Kamala Harris’s favorite expression) and the swings of politics, things tend to balance out when a Democrat president is in office and a vacancy occurs. The passage of time is a great balancer in the life of a democratic nation.

As it will be in Israel.

Today, the current government may be able to select a judge to the Supreme Court, and an opposition government that will replace today’s coalition will have the opportunity to select their candidates when political winds blow in their direction. They can then introduce their own legislative agenda once the public returns them to office.

Democracy in action

This is the cherished value of Western-style democracies that both sides of the political divide in Israel claim they want to adopt.

There may be bumps in the road, such as the dispute over the appointment of Arieh Deri to be a minister, but lessons will be learnt, and the democratic process will improve.

Bear in mind that Israel is less than seventy-five years old yet is a democracy on steroids.

The introduction of long-needed legislative reforms is certainly not the end of democracy but the strengthening of Israel’s democratic system for the benefit of both sides of the political divide.

Barry Shawis International Public Diplomacy Director, at the Israel Institute for Strategic Studies.

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