Like many others, I’ve been watching the progress of the proposed overhaul of the Israeli Judiciary with considerable interest.
The controversial reforms, which are a cornerstone of the new coalition Government, propose limiting the power of the Judiciary by allowing a simple parliamentary majority to override almost all supreme court rulings – a move which, according to critics, would give politicians unprecedented power in a country with no formal constitution or second legislative chamber.
The proposed changes, which have already passed a preliminary voting stage by a margin of 63 to 47, have led to some of the biggest protests in the history of Israel with demonstrations being staged throughout the country and marches outside the Knesset while the proposed legislation was being debated.
Opponents claim that the legislation will give the Knesset ‘unprecedented power’ and will sweep away the democratic checks and balances provided by an independent Judiciary. They point to the US where the Judiciary forms part of the legislative process and plays an important role in interpreting the effect of legislation relative to the US Constitution and Bill of Rights, holding this up as a model for Israeli democracy.
But are the proposed reforms really as bad as they’re being painted to be?
The answer to that question really depends on your definition of ‘democracy’. For me, the idea that an unelected Judiciary should have the power to overrule the clear intention of Parliament is an absolute affront to any meaningful concept of democratic representation. MPs, (or MKs, in Israel) are elected by the people and, if we don’t like the decisions that they make we have the ability to remove them in an election (a process that Israel has become well accustomed to in recent years).
Contrast that with the tenure of Supreme Court Justices who are ‘appointed’ and who are not in any way accountable to the people whose lives their decisions effect. This, coupled with their ability to engage in ‘judicial activism’, where the clear intent of the Knesset can be overturned through the reinterpretation of the meaning of legislation is a power which, in my opinion, flies in the face of our innate understanding of ‘democratic’ traditions.
But what about the US, where an independent Judiciary is tasked with acting as the guardian of Constitutional rights and which sets the standard by which all good democracies should be measured? But does it? Only the most fanatical supporter of the US system could fail to see that that system is broken and has become a paralysed parody of itself, in which partisan Judicial division and increasingly entrenched views have made it almost impossible to effect progress in any meaningful way.
It’s also worth noting that the reforms being proposed would actually bring the Israeli system more into line with the way that New Zealand operates. New Zealand has no second chamber, no formal constitution and, although we now have a Supreme Court, that body is still subservient to the supremacy of Parliament – which means that, as is being proposed in Israel, the New Zealand Parliament can overrule Supreme Court decisions with a simple majority vote.
Whether you see that as a good or bad thing will probably depend on your experience of the New Zealand system. For me, the kiwi Parliamentary system has operated extremely well for decades and has produced a level of freedom and grassroots representation which is the envy of other democracies. That’s not to say that judicial activism doesn’t happen here too – but the New Zealand Parliament will generally tolerate some dissent by the Supreme Court unless it is clearly at odds with what the Government of the day is trying to achieve.
It’s important to note that not everybody agrees that there are parallels between New Zealand and what’s being proposed in Israel. In a stinging rebuttal of the comparison published in the Times Of Israel, Tel Aviv University Professor of Public Policy Alon Tal opines that there are significant difference which allow the New Zealand approach to work here in a way that it wouldn’t work in Israel. His article contains a number of factual errors about New Zealand and the way that the system works here, but it is nevertheless a worthy addition to the debate.
Opponents will also point to the overreach of the New Zealand Labour Government over the past few years as an example of what can happen when Parliament holds all the power – but any objective observer will recognise that the circumstances of their election, in 2020, were unprecedented and that, in any case, there is no guarantee that an independent Judiciary would have made much difference to the course of events.
Reform is clearly coming to Israel as the Government seems determined to push through its proposed changes. Whether these will spell the end of democracy, or will simply bring Israel more into line with democratic nations like New Zealand which have a proud tradition of protecting the rights of their people – only time will tell.