The Case for Israel’s Judicial Reform

An accurate discussion on the reform in the judicial system requires a clear-sighted assessment of the flaws in the current state, and an acknowledgment of the extensive theoretical, moral, and factual foundation underlying the proposed changes

When it comes to the explosive debate surrounding the legal-reform package currently being advanced in Israel’s Knesset (the Israeli Parliament), the public has generally been presented with only one side of the argument. To be sure, the questions raised by the reform are hardly new; they have been discussed in the legal literature and public media for years, with both sides of the debate generating an extensive body of literature and analysis in support of their views. Unfortunately, from the moment that pro-reform advocates moved from the realm of theory to the realm of action – when, in January, they first announced their intention to implement their long-discussed plans – Israel’s legal academic establishment closed ranks and rallied in monolithic opposition to the reform package.

As a result of this abrupt and unfortunate end to the scholarly discussion of the evolving role of Israel’s judiciary, the Israeli people have so far been denied the opportunity to hear anything other than uninformative polemics against the proposed reforms. In fact, as far as I am aware, there has not been a single serious attempt to present the public with an account of the legal theory underlying the proposed reforms in a complete and comprehensive manner.[1] This essay is an attempt to do just that.

A fair and accurate discussion of the justice-system reform requires a clear-eyed view of the failings of the status quo, and a recognition of the extensive theoretical, moral, and factual foundations of the proposed changes. In what follows, I will explain the axioms that serve as the theoretical basis of the government’s proposed reforms, and thus fill the now-gaping hole in the public’s understanding of the reforms’ origins and goals.

As of this writing, there is a great deal of uncertainty when it comes to the status of the original reform package. Ongoing negotiations between the leaders of Israel’s largest factions suggest that changes and adjustments will likely be made, and it’s possible that some, if not all, of the original proposals will be forgone. For our purposes, however, this is irrelevant. This article – as its title implies – aims to serve as a defense of the original reform, even if it is adopted in its entirely uncompromised form.

The article is organized as follows: In Chapter One, I will present the existing problems in the legal status quo, according to supporters of the reform. In Chapter Two, I will seek to undermine one of the central assumptions of those who oppose reform: the idea that judicial review of Knesset legislation is a prerequisite for democracy, or at least for Israeli democracy. In Chapter Three, I will examine the principle of the separation of powers, which underlies a significant part of the critique of the reformers. Here, I will argue that in the current state of affairs, it is the judiciary which most seriously undermines this core democratic principle. Accordingly, and contrary to the views of its opponents, the reform will not worsen the imbalance, but instead lead to the opposite: It will restore a more proper balance between the different branches of the Israeli government. In Chapters Four through Seven, I will survey the different components of the reform: the proposed change in the composition of the Judicial Selection Committee, the proposed limitations on judicial review of Knesset legislation, the proposed rejection of judicial review of Basic Laws, and the proposed narrowing of the legal argument of “Reasonableness” in Israeli jurisprudence. Issue by issue, I will deal with the main arguments being raised and will make specific proposals to improve the reform package. In Chapter Eight, I will revisit the concerns surrounding the threat of “governmental tyranny” in light of my analysis, considering the checks and balances that will remain even after the reform is passed. In the final chapter, I will address those calling for a softening of the reform by proposing certain changes which could help moderate the opposition against it.

Let me preface this lengthy argument by recognizing, at the outset, that many of the assumptions underlying opposition to the proposed judicial reforms are the result of serious, good-faith theoretical and philosophical deliberation. My hope is that those who critique the reform on the basis of such assumptions will come to see that reform supporters are operating with a different, but no-less-serious set of principles and assumptions. It is not my view that the reform package, in its current form, is perfect; some of its components must be strengthened and some of the mechanisms should be clarified and refined.  This is all being done in the halls of the Knesset and in discussions currently taking place through the mediation of President Herzog. Nevertheless, in this essay I will argue that the reform package – even in its present, unmodified form – is entirely democratic, absolutely necessary,  and plainly preferable to the existing state of affairs.

Chapter One: All is Far from Well

In the few years in which I worked in the legal world, especially the year in which I clerked in the Israeli Supreme Court, I was exposed to an illustrious legal system. It’s not for nothing that the Supreme Court is one of the Israel’s greatest sources of pride – a symbol that, in contrast to our country’s neighbors, Israel is governed by the rule of law. The Supreme Court was and is presided over by justices who are decent, honest, and virtuous. It has been home to legal giants who brought real and positive change to all areas of Israeli law and life. In its other role, too, as the High Court of Justice,[2] the Court enjoys a glorious history: It was the institution that gave voice to those who could not speak and that defended the small citizen from the steamroller of big government. Precisely as one who holds this institution near and dear to his heart, I believe we cannot avoid recognizing its current flaws.

while functioning as the High Court of Justice, this great establishment has fundamentally changed in the past few decades, and in my view – not for the better. The legal reform being proposed does not seek to weaken the High Court of Justice. It aims instead to strengthen it, to help it return to its designated role, with the tools that are proper for its use. The hope is that this will restore the nation’s trust in the Court as an institution, as public trust is essential to its legitimacy and, consequently, its functionality.[3]

In the public discourse surrounding the reform, opponents tend to ignore critiques that reformers have of the current status quo, or at least they tend to amplify selected critiques with the aim of creating strawmen that allow them to ignore the more compelling arguments. Thus, outsized attention is given to the arguments about claims of a coup de main when the Basic Laws were passed in 1992, or the right-wing critiques of the court’s conduct during the 2005 Disengagement from the Gaza Strip.[4] These critiques are important, but the focus on them understates the depth of the reformer’s position. As Hebrew University law professor Brachyahu Lifshitz recently wrote:

To understand the heart of the matter, we need to get down into detail. Of course, this is exhausting, and it’s easier to avoid that and adhere to general arguments and slogans. Even those who concede the imperfection of the legal system do not emphasize what that means (aside from the need to add judges), and immediately attack the reform proposal and make their own. But decency and fairness require going into detail in order to precisely examine the flaws and define it, for this is existential for us. We must read matters slowly and attentively, absorb the facts and the quotes, and only then judge honestly and without distorting what is written. General calls and scaremongering of the future we can expect are not enough. These are false visions and temptations, meant to preserve the status quo.[5]

In other words, when seeking to examine whether the reform will bring improvement or deterioration compared to the current state of affairs, we need to first present the current state of affairs in full, without touching anything up or sufficing with partial arguments.

Before taking note of the serious problems of the current status quo, it’s important to clarify something which currently does not get enough attention in the public debate: The reform is not being advanced on the basis of claims about facts or history, but rather on the basis of a normative, moral position which questions many of the assumptions of reform opponents. Thus, supporters of reform often have different views regarding the question of the proper division of authority in a democratic country and whether the Court should be given the power of “strong” judicial review of Knesset legislation – powers which include striking down laws, as opposed to “weaker” review powers, or even middle options, which I will discuss later on. More specifically, the core debate revolves around the question of which branch of government should have the “last word” in a democratic country.

There is an extensive, detailed approach to this question, supported by some of the most important thinkers from around the world, which holds that “strong” judicial review of the legislature is neither proper nor necessary in a functional democracy. One of the most prominent exponents of this view is New York University law professor Jeremy Waldron.[6] His central argument is that in a state with reasonably functioning democratic institutions, in which most of society is committed to the idea of protecting human and minority rights, there is no justification for “strong” judicial review of the laws passed by the legislature. Waldron’s argument for deference to legislatures over judiciaries is grounded in the simple fact that there is a relative democratic deficit in the judiciary by virtue of judges not being subject to elections, as well as the understanding that judicial review almost never touches on the question of whether or not human rights should be protected. Instead, courts usually deal with legitimate debates as to the interpretation and scope of specific human rights, and of the proper balance between clashing values in the specific case under review. Since these questions are usually not about law, but about values, the court has no relative advantage or authority when it comes to answering them. On the other hand, there is a strong argument that such questions should be decided by the legislature, the elected body of representatives chosen to adjudicate precisely such political disputes .

There are some who argue that Israel does not live up to the conditions laid out in this theory, as its democratic institutions are not considered reasonably functioning, or Israeli society is not regarded as sufficiently committed to human rights.[7] But these arguments are based on a very narrow and even pedantic understanding of Waldron – an interpretation that Waldron has himself explicitly rejected. In addition, the arguments regarding low levels of commitment to human rights in Israeli society rely on a tendentious and partial presentation of the facts, as well as a conceptual confusion between commitment to human rights in principle and a reasonable and real debate as to the content of those rights.[8]

Once we recognize the existence of a different normative theoretical view as to the proper role of the court in a democratic country, many of the arguments made against the reform reveal themselves to be unresponsive to the reformer-advocates central claims. One can, of course, have a different stance than that of the reformers, but it’s important to understand that this is not a debate between supporters and opponents of democracy, but rather a legitimate debate between two groups as to what is the best constitutional arrangement within a democracy.

For pro-reform advocates, such as myself, the relationship between the Israeli branches of government – and the way this arrangement took shape – point to a number of very serious problems in Israeli democracy. As Lifshitz and others have noted,[9] these problems began in the eighties, when the court – by undermining the traditional mechanisms which limited its power, such as justiciability, standing, and so on – began to intrude into the political and professional spheres in a manner that has no equivalent in any other legal system. By dramatically expanding the range of questions which were judiciable, the justices of this era turned the High Court of Justice into what Lifshitz characterizes as a “judicial institution that is irregular by any metric.”[10] Worse, the Court of this era began to ground its ruling in administrative matters on the basis of values rather than laws, inventing entirely novel, extra-constitutional standards – including the notoriously subjective “Reasonableness” standard – to strike down administrative decisions of which it did not approve. This is troubling because, at least in a healthy democracy like Israel’s, citizens rightly expect questions of competing values to be settled by their representatives, not unelected officials.

At first, this usurpation of traditional democratic norms was limited to the Court’s interference in specific administration questions. In the 1990s, however, this revolution in administrative law was joined by its big sister: the so-called “constitutional revolution.” In the case Bank Mizrachi v. The Minister of Finance (1995),[11] the Supreme Court declared for the first time that the recently passed Basic Laws of the early nineties functioned as Israel’s constitution and granted the Court the power to strike down laws passed by the Knesset.[12] The Mizrachi case has been the matter of fierce debate ever since, but I will not address this controversy here and assume (entirely arguendo, as it is not at all clear this is the case) that the Court acted legitimately in Mizrachi, based on powers granted to it by the Knesset. Still, it’s hard to ignore the questionable way the Court immediately set about using this authority, “interpreting” it in a way that allowed it to strike down even laws which were claimed to infringe rights not explicitly included in the Basic Laws, including rights that were deliberately omitted from them.[13]

This is just the tip of the iceberg. More than the specific authority the Court acquired in the eighties and nineties, sliding quickly down the slippery slope into the jurisdiction of the other branches of government, it is the manner in which this authority was accrued which demonstrates the most serious problem of all: insofar as the limitations of the Court’s power since the eighties were solely determined by the Court, the judiciary was revealed to have absolute power. The Court, which enjoys the complete legal obedience of all other governmental bodies, is in effect not limited at all whenever it uses its powers to rule on matters of law. This means that not only does the judiciary have the power to determine its own limitations – it also has unlimited power to shape and change the rules of the political game in the State of Israel as it sees fit. It’s difficult to exaggerate the impact of this revolution in Israeli politics. The other branches of government, which more directly represent the will of the people, end up playing a game whose rules are unclear and often changed by the authority suffering from the biggest democratic deficit of them all.

This analysis covers both the administrative revolution of the eighties, which opened the gates of the court to everyone – on every issue, and the constitutional revolution of the nineties, which led to the legislature’s subordination to the Court. During the early 2000s, although it did not explicitly declare as much, the Court effectively expanded its own role once again. We are presently witnessing the maturation of this last, supra-constitutional revolution. After establishing its superiority over the legislative branch by virtue of the constituent authority, the judiciary is now establishing itself as superior even over the constituent authority itself.

What is the nature of that supra-constitutional revolution? To understand the shift, we must first understand the arrangement between the Knesset, the Basic Laws, and the Supreme Court itself in years after Mizrachi. In that case, the Court stated that the Basic Laws authorize it to strike down laws passed by the Knesset. This assertion was based primarily on two foundations. The first was the view,[14] that the Knesset, serving both as the constituent and legislative authority, had unlimited power to establish Basic Laws, which are normatively superior to all other government powers, including both the judiciary and the Knesset when acting as the legislative branch. The second foundation was the view that, due to the unique circumstances of the Israeli constitutional project, the Basic Laws must be regarded superior to other laws even though there is no unique process in enacting them – they enjoy no special legal protections such as a requiring a special majority to repeal them. Indeed, nothing makes these laws unique aside from their title, which must include the words “Basic Law,” and does not note the year of legislation. Thus, the only test to identify basic legislation is the “formal test” based on the formal characteristics of the Basic Law, rather than its content. As Supreme Court President Justice Aharon Barak said:

When does the norm [a given law]creates have constitutional status, and when do we say that the norm is a “regular” law? In my view, the answer is that the Knesset uses its constituent authority […] when it gives external expression to this in the name of the norm and views it as a Basic Law (without noting the year of legislation) […] our constitutional legislation has formal anchoring. This formal test – the use of the form of speech of “Basic Law” – is simple for operation. It grants security and certainty.[15]

But almost as soon as the Knesset acknowledged this new power and sought put it to use, following the rules laid out by the Court, the rules changed yet again. Having declared that it could strike down Knesset laws on basis of the Basic Laws, the Court then declared that it had the authority to review the Basic Laws themselves, entirely rejecting the supremacy of the Knesset as a constituent authority as well as its own Basic Law identification test. In a series of appeals, the court invented two doctrines to allow such intervention. The more extreme was the “unconstitutional constitutional amendment” which would allow the Court to declare a Basic Law to be unconstitutional. This first doctrine has not yet been formally adopted by the Israeli Court, though there are prominent legal figures in Israel who have called for it to do so. Instead, the court has embraced a second doctrine, the doctrine of “abuse of constitutional authority,” which allows the Court to strike down any Basic Law that the Court unilaterally refuses to recognize as such. In a lecture he gave a few months ago,[16] Justice Noam Solberg demonstrated how the Court arrived at this doctrine bit by bit, case by case: First, the shift was justified on almost technical grounds, allowing the Court to intervene in specific sections of Basic Laws – known as “Temporary Orders” – which by their very nature are not intended to be part of an eternal constitution. Later, the Court allocated to itself the power to strike down Basic Laws when they considered the intentions of the MKs who passed the law to be inappropriate –for example, if the legislation appeared to be motivated by a narrow political or personal interest. Finally, the court entirely did away with the formal identification test established by Mizrachi, replacing it with a new substantive identification test that includes three subtests – the “stability test,” the “generality test,” and the “fitting the overall constitutional fabric test.” Failure to meet any of these tests in the eyes of the Court means that a law is not a Basic Law at all, even if it was understood as a Basic Law by the elected legislators in the Knesset who passed it, and was titled accordingly.[17]

It’s hard to exaggerate just how problematic this all is. As a result of these judicial revolutions in Israeli government, the basic rules underlying the Israeli governmental structure are constantly shifting. The judiciary now has seemingly exclusive authority to keep changing them as it sees fit – and it does so frequently. Admittedly, common-law systems are intended to evolve, and administrative law under such systems is built up precedent by precedent over the course of centuries. But common law also needs to develop within a fixed and immutable set of rules, established either in a ratified constitution or based on a broad societal consensus over time.  Often, the argument has been raised regarding the problem of the Basic Laws being kneaded “like playdough” by the Knesset to force the Israeli constitution to meet the needs of various governments. And yet, the very same thing can be said of the Court, which time and again changes the very bedrock principles and rules of the relations between the branches on an ongoing basis in order to deal with difficulties arising in this or that case. A constitutional fabric must be adopted, based as much as possible on the “veil of ignorance,” by a body which enjoys maximal direct authority from the people as far as is possible.

It is true that the Knesset sometimes does not pass these tests, but as we know, “hard cases make bad law.”[18] Even if we agree that there is something of a problem with the Knesset sometimes changing the rules of the game, this problem always emerges when the Court is the one determining the core constitutional and legal arrangements: The Court cannot help but fit its decision to address the concrete question it faces – this is simply how it operates. Of course, when dealing with appeals addressing the validity of a law or Basic Law, the court’s considerations are usually broader than the specific harm to this or that individual. Nevertheless,  the limits of the court’s authority are also determined during an effort to deal with the “hard” case of a specific law which has come before the court, and not as part of a principled and transparent constitutional discussion like the sort which takes place when the Knesset discusses such arrangements.[19] Indeed, the debate over the current reform is a clear example of the latter.

One can, of course, hold the view that the Court should be given the authority to strike down Basic Laws; the concern here is not whether the Court has that authority, but rather the means by which it acquires that authority. This matter touches on “the roots of the relationship between the constituent authority (of the Knesset) and the judicial authority (of the courts),”[20] as Justice Barak put it. In a petition published by 18 retired Supreme Court justices, it was argued that:

The proposed changes in the plan […] require a prior examination, official and open, which will thoroughly clarify the existing situation and the need for a change of the situation […] We propose the government give a hand to establishing a public committee with an appropriate complement of public figures and subject matter experts to maintain a thorough and transparent examination of the existing situation: gathering data and inviting opinions; allowing the broader public to express views and make proposals, and consider the expected consequences of every proposal.[21]

It is here the Supreme Court justices who signed the petition should look at themselves honestly and answer: Did they ever conduct a serious public discussion before establishing the current constitutional reality that the reform seeks to roll back? Were either the public or its representatives consulted before they effectively established, de jure and de facto, that their authority is superior to that of the constituent authority? Was that decision at least based on a solid legal foundation grounded in widely accepted facts and broad consensus?

The answer to the first two questions is negative. As Justice Mishael Cheshin wrote in his dissent opinion in Mizrachi: “And the nation – where is it? Is it not appropriate we ask its opinion? To the contrary: Let us call on the nation and ask it […] If so for [the Matriarch] Rivkah – should it not be so for the whole Jewish People?”[22] When it comes to the question of judicial review of Basic Laws, the Reasonableness rule, or the expansion of the powers of the Attorney General – no one asked the people. Such decisions, which have radically changed the very structure of the state, cannot be adopted as part of a ruling dealing with this or that amendment to a Basic Law, without a public discussion in the venue most appropriate for this discussion – the Knesset itself.[23]

The answer to the third question is also negative. Constitutional law in today’s Israel resembles a castle floating in the sky. As I noted above, the Court’s authority to strike down laws was first based on a number of assumptions: that the status of Basic Laws can be determined by a pedantic, formal test and have supreme normative power, regardless of how they were adopted. Yet, both these necessary assumptions for asserting the Court’s power of judicial review have since been tossed aside by the Court itself. While building up the second floor of the emerging constitutional structure, the judges then took away the pillars that held up the whole building. This was done despite loud, explicit warnings from some of the justices in the court: In the case Shaffir v. the Knesset (2021),[24] when the Court officially deviated from the formal identification test as outlined above, the conservative minority justices made this warning quite clearly. Thus, Justice David Mintz wrote:

The basic question, where we have the permission and authority to critique Basic Laws, increases even further in our matter. As on the agenda stands the addition of an essential test for identifying Basic Laws, in a way that ostensibly pulls the rug from under recognition of their supremacy. As was said years ago, “Those who espouse the constituent authority as the source of authority for the legislation of Basic Laws must also espouse a formal or formalistic approach regarding the means of identifying the norms which benefit from normal superiority” […] According to the foundations established in the matter of Mizrachi bank, the recognition of the existence of a constituent authority (and the authority given to this authority to limit the power of the legislative authority) by force of broad social agreement and based on the will of the people means in and of itself a recognition of the almost unlimited power given over to the constituent authority […] The identification of this power needs to be clear. In the absence of a simple and clear distinction between a matter of legislation and a matter of constitution, the basic justification for recognizing that the norms produced by the constituent authority may limit the legislative authority is taken away.[25]

The problem is that this rather straightforward objection was not met with a learned, convincing argument in favor of this change from the Court’s majority. Indeed, it was not even met with an unconvincing one. Instead, the majority simply ignored the criticism entirely.

This is not to say that the modern Court does not ever attempt to justify itself; on the contrary,  the Supreme Court always explains its decisions, often at great length. But the moment the validity of a ruling is not dependent on the quality of its arguments, the justification ceases to matter. Given its absolute authority on all legal questions, the Court in its current form can effectively write whatever it wants; the majority is under no obligation or even pressure to address the arguments of the minority or of outside legal experts – and it frequently does not attempt to do either. Furthermore, the Court’s majority is often divided on the legal reasoning leading to the agreed upon result. There are many major rulings (Mizrachi, Hasson, and Shaffir are the most prominent examples among many others) where the justices have revolutionized the structure of Israeli government without offering a coherent legal theory or unified justification for their ruling. Moreover, once a ruling is offered, there is no point in arguing that the court erred in its reasoning – intentionally or not. Because the Court has final, absolute authority on legal and constitutional questions, its decisions can only be re-examined by the Court itself, if and when it wishes to do so.

To understand just how absurd this situation is in practice, it’s worth considering a real-world example. In the majority opinion in the matter of Amitai (1993),[26] Justice Barak stated that when there is a disagreement between the government and the Attorney General, the latter’s recommendation binds the government, and will be the sole position presented before the court. Barak based this novel ruling (which is under discussion as part of the reform) on the 1975 Agranat Committee Report. Later on, when Justice Barak was confronted with the fact that this report said precisely the opposite of what he claimed in his opinion, he admitted: “There are many Israeli creations which have no support based on prior sources. I was therefore quick to write what I told you in the ruling. If you ask me what the source is […] my answer is that the source is the ruling of the Supreme Court.”[27] Like Baron Munchausen, the court lifted itself by its own hair, with the baseless comments from one ruling becoming the binding legal precedent in the next. Another example of this legal absurdity, which has become terrifyingly relevant in recent days, is current Supreme Court President Esther Hayut’s opinion in the case of Hasson (2021),[28] according to which all basic legislation that is not compatible with the Court’s understanding of Israel as a Jewish and democratic state will be considered “unconstitutional constitutional amendment”. This opinion, which was merely a sidenote, and was not established as a binding and accepted precedent at the time, is already at the basis of the opinion submitted by the legal adviser to the government regarding the current reform, laying the groundwork its future nullification by the Supreme Court.[29]

As such examples make clear, the unprecedented and unparalleled level of unchecked judicial power in Israel is more than an absurdity – it is a danger to our democracy. In the past few years, the Supreme Court has gone as far as to entertain the possibility of removing a sitting Prime Minister without any explicit authority in law to do so. It has weighed limiting the President’s discretion in handing the mandate to form a coalition to a given party. As was mentioned, the Court has already floated the view that it can strike down an essential Basic Law (the Nation State Law) on the grounds that its content makes it an “unconstitutional constitutional amendment,” and so on. Recently, we have learned that the Supreme Court has decided to deliberate on an appeal seeking to instruct the Attorney General to declare the Prime Minister incapacitated, despite him being healthy and of sound mind, instead of summarily rejecting such an appeal. All these are subjects at the heart of the basic principles of the Israeli regime. The court obviously does not choose the subjects which end up on its agenda,[30] but it very much has the power to decide whether to deliberate on them or summarily reject the idea (as one could expect on such matters). This was not always the case. For many decades, Israeli constitutional law developed slowly, with “developed” being a key word. But still, for many years the rules of the game remained stable and the relations between the branches of government remained fixed. That is, unfortunately, no longer the case.

Before I move on, I cannot ignore the often-repeated argument that the Knesset and the government have also changed in the past few decades. According to this argument, the way in which the Knesset historically chose to use its powers as a legislative and constituent authority, and the relations between it and the government, “invited” or perhaps even required the Court to increase its own authority over time. This argument is made particularly in regard to the “cheapening” use of the constitutional tool, with the frequent changing of Basic Laws for the changing needs of the government. The trouble is that this argument is highly doubtful at the factual level.

Israel has always had a more “lenient” policy towards amending Basic Laws compared to other countries. This trend only increased after the passing of the human-rights laws. Since the beginning of the 1990s, hardly a year has passed when at least one amendment was not appended to a Basic Law, and often many such amendments were made.[31] True, there has been an increase in recent years, but we need to remember that this was done at a time of unprecedented political turmoil and governmental instability, with five elections in less than three years. Nor can it be argued that the amendments have become more self-interested over the years: Even before Mizrachi, the Knesset passed an override clause for Basic Law: Freedom of Occupation, as a “personal” amendment meant to allow the passing of a specific law dealing with the importing of non-kosher meat – the only use made of the clause until today. A year later, in 1995, the Knesset amended Basic Law: The Knesset in order to allow the splitting of the Tzomet party to allow for a sufficient majority in support of the Oslo Accords. In 1996, the Knesset amended the “conservation of laws” of Basic Law: Human Dignity and Freedom (Section 10) which was set to expire and extended it for another two years. When the law passed via the aforementioned override clause was set to expire (as the override clause limited the validity of laws passed with its aid to four years), the Knesset added a designated section (8(b) which removed this law, and it alone, from the override clause’s sunset rule. In that time, the Knesset made dramatic changes in the Basic Laws as part of the direct-elections reform [of the Prime Minister] – changes then repealed wholesale in 2001. It would therefore seem that the Knesset’s willingness to amend the Basic Laws in the face of changing political constraints is neither a recent innovation or a sign of “deterioration.”

Even if we accepted this argument as factually correct, there is a significant difference between the change in the Knesset’s behavior and that in the Court. As I will show, the Court’s declaration of the supremacy of the Basic Laws was done with full recognition that the Knesset could and might change such laws by a simple majority. As I have shown, this was done even after the Knesset has already made frequent use of these authorities to protect some “narrow interest” which came up. In any event, there is obviously no similarity between the claim of excessive use of authority rightly granted, and claims of deviation from authority granted. In other words, while there are plenty of critiques one could make of the Knesset and the government regarding how they use the tools they are given, the argument against the Court is qualitatively different – in the latter case, the critique is not based on the way the Court is choosing to exercise its lawful power, but rather with the essential illegitimacy of the enormous power it has slowly allotted to itself.

To sum up, countering the claim that the proposed reforms will make the existing situation worse requires first fully appreciating how bad things are currently. The problems I noted, which have yet to be fully presented and appreciated in the academic discourse surrounding the reform, negate the validity of this claim and place the motivation to urgently pass the reform in a different light. As I will show, the proposed reform package fixes many of the flaws I noted, and does so in a manner that restores democratic accountability and balance between the branches of Israel’s government.

Chapter Two: Is Judicial Review an Essential Part of Israeli Democracy?

At the root of opposition to the reform is a fundamental assumption that “In every stable democracy, the house of representatives is subject to oversight and various constraints, meant to prevent abuse of its power […] The Supreme Court is always part of those oversight mechanisms, and cannot entirely avoid discussing issues with value dimensions.”[32] This assumption underlies the critical approach of reform opponents to those parts of the reform dealing with judicial review and the status of Basic Laws.

Let me preface the following by distinguishing between the different forms of judicial review, not all of which are problematic. Indeed, a degree of judicial review is the standard in most modern democracies around the world, but quite a few respected democracies do not have the “strong” form of judicial review that allows courts to strike down laws.[33] I do not seek to justify the reform by comparing Israel to other countries; we should note that too much of the discourse surrounding the reform focuses on such comparisons, with each side stressing evidence that supports its view, ignoring counter examples, and entirely avoiding substantive analysis of the actual advantages or disadvantages of a particular arrangement.[34] Still, as I noted, the normative assumption that a democracy should have a high court with the authority to strike down laws passed by the legislature is not accepted as a given everywhere, and is indeed at the heart of a fierce, international battle over democratic legal theory.

At the heart of many modern democracies is a constitutional principle known as “parliamentary sovereignty.”[35] This principle, which is in some tension with the principle of the separation of powers, is applied differently in different countries, but generally asserts that the legislature is supreme over the other branches of government and is supposed to have the last word, in principle, within the framework of checks and balances between the branches of government. Following its creation in 1948, the State of Israel itself endorsed this position and, in fact, has never formally abandoned it. Under the Israeli system that preceded the passing of Basic Law: Human Dignity and Freedom in 1992, this principle was adopted absolutely as part of an understanding of the Knesset as all-powerful, with the legal authority to curtail human rights – without the court having the authority to intervene.[36] Then-Supreme Court President Aharon Barak described this arrangement clearly at the beginning of his 1995 opinion in Mizrachi:

Until now, the view was prevalent in Israel that “The all-powerful legislator may permit harm to the citizen without being held accountable…” […] “The decree of the legislator is [final], and if it leads to discriminations, then the discriminations are enacted and therefore legitimate and not illegitimate […] This was summarized by Justice Berenzon, who stated that: “…It is above all doubt that according to the constitutional regime prevalent in the state, the Knesset is sovereign and it has the power to enact any law and fill it with whatever content it sees fit. The possibility of invalidating a Knesset law or instruction in a Knesset law done lawfully on the basis of this or that argument is inconceivable […] This constitutional outlook has undergone a change. The Knesset, in using its powers of legislation, is no longer all-powerful. Its legislative powers in the field of human rights have now been limited by the Knesset, while using its constituent authorities. This is the basic constitutional change.[37]

Such an understanding of the Israeli constitutional order was also shared by former Supreme Court President Meir Shamgar, who based his entire constitutional approach on the position known as the “all-powerful Knesset.” Thus President Shamgar stated:

The doctrine of the unlimited sovereignty of the Knesset is anchored in the view that the Knesset is the supreme legislative authority and is unlimited in its power, aside from those limitations which it established for itself there is no legislative body above it, and it is authorized to pass any law, constitutional or ordinary. All the constitutional powers of legislation which have not been realized since the establishment of the state and after the elections for the constituent assembly have also been absorbed and integrated into it […] Every legislative act is done by the Knesset as such. It is the supreme, all-powerful legislative authority of the state.[38]

On the basis of this understanding, even President Barak admitted in Mizrachi that the changes that occurred under that ruling were not to be understood as irreversible by the Knesset:

Our Knesset has constituent authority, through which it is possible to reach constitutional arrangements which the English are having difficulty reaching. I state this not because I rejoice in a constitution […] I state this because this is – according to the best of my professional knowledge and based on my best effort at being objective – our constitutional structure and understanding today. […] So long as the Knesset has not decided to stop the constitutional project [which was authorized by Israel’s Declaration of Independence in 1948], the court must grant constitutional validity to this project, whatever the views of the justice may be.[39]

Given this history, it’s clear that the anti-reform arguments, which present judicial review as a necessary prerequisite for a democratic country, imply that Israel was not a functioning democracy until 1992. Accordingly, on the other hand, those who derive Israel’s founding principles as a Jewish and democratic state from the Declaration of Independence cannot argue that the denial of the Court’s authority to oversee the Knesset and review its legislation violates those founding principles. This point is significant, in particular, since it has direct consequences for the Court’s ability, by its own lights, to strike down the reform if it passes. As of this writing, the fear that the Court might attempt this – appears entirely warranted. It would seem unnecessary to state that such an action, if it comes to pass, would lead to an unprecedented crisis in the relations between the branches, of the sort almost unimaginable in a democratic country – even without addressing the question of the validity of such a ruling. If the Supreme Court justices choose to take this step, it means that the Supreme Court has chosen to make itself supreme even over the very Basic Law which enables its existence – Basic Law: The Judiciary. It’s hard to imagine a greater conflict of interest or usurpation of democratic authority.

Such a decision, should it come to pass, would almost certainly be based on the argument that the reform is an “unconstitutional constitutional amendment.” As was noted, this doctrine has already begun to take form in the Supreme Court’s jurisprudence; President Hayut stated that Basic Laws which, in the eyes of the Court, threaten Israel’s identity as a Jewish and democratic state are null and void.[40] This argument has been made recently by the Attorney General and her representatives at the discussions of the Constitution Committee. As I showed, when it comes to the possibility of striking down laws, this argument is unquestionably historically baseless. This is true when it comes to the other parts of the reform: When the state was established by force of the Declaration, the court had no authority to strike down laws and certainly not Basic Laws.[41] Indeed, for the first several decades of Israel’s history, there wasn’t even a Judicial Selection Committee in the form we know today, [42] or the new established Reasonableness argument. By necessity, the view that the reform contradicts the fundamental principles of the Israeli system conveniently ignores that Israel’s judiciary has changed the meaning of these principles dramatically over the years; what was considered democratic for the first several decades after the country was founded can, apparently, no longer be considered democratic today.[43]

One way to understand this development is as an importation of the American debate between the constitutional philosophies of originalism and living constitutionalism.[44] This debate revolves around the question of how to interpret the text of the U.S. constitution: according to the meaning attributed a given legal text at the time it was enacted (originalism), or according to the meaning that can be derived from the text by modern legal professionals today (living constitutionalism). The Israeli legal establishment’s adoption of the “living constitution” approach is, however, far more radical than its U.S. predecessor: It does not rely on an interpretation of the constitutional text; instead, under the Israeli standard, the judges appeal to “fundamental principles of the system” that are not anchored in any legal document or any other historic sources.[45] In my view, this radical – indeed, truly revolutionary – position needs to be emphatically rejected.

The Knesset, which serves as a constituent authority in the name of the people, willingly granted the power of judicial review to the Supreme Court. But, as Chief Justice Barak declared, “the voice that prohibited is the voice that permitted,” and the Knesset always retained the constitutional authority to reverse itself and reclaim its constitution-making authority if and when it saw fit to do so. This arrangement accords with the famous words of United States’ Chief Justice John Marshall, which are now written upon the U.S. Supreme Court building in gold letters: “The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will.”[46] The current Knesset, believes, in the name of the people, that the Court grossly overstepped and misused the authority previously granted to it by the people and its representatives. Echoes of this view have been heard even from Supreme Court justices themselves: Justice Solberg already expressed his views regarding some of the steps I mentioned, which he believed amount to “Unfavorable use of the authority of judicial review”.[47] Therefore, the Knesset now seeks to reclaim its constituent authority – an authority that, in truth, it never forfeited. – and even this after two and a half decades, and only partially

Recognition of the fact that an override-proof veto power over the legislature is not necessarily the proper role of the judiciary in a healthy democracy significantly affects one’s attitude to the reform as a whole. Admittedly, the evidence presented so far is not intended to definitively prove that Israel’s Supreme Court should not have the power of judicial review, but it should demonstrate that democracies can, and do, exist as such without granting the judiciary that power. Thus, even if this chapter does not persuade reform opponents that judicial review is unjust, it should convince them that the proposed denial of the Court’s power of judicial review is not a threat to democracy; just as Israel was a democracy between 1948 and 1992, when the Court lacked this power, it will remain a democracy once the reform package is passed.

Chapter Three: Checks, Balances, and the Separation of Powers

The principle of the balance of powers is an Archimedean one that can be included among the “fundamental principles of the Israeli system” and indeed of democracy in general. But when it is discussed as an essential democratic principle, it’s important to understand what a balance of power is meant to achieve. As Hebrew University law professor Neta Barak-Corren noted in her position paper on the proposed reform, the separation of powers is meant to cement the power of the nation as sovereign:

The splitting of governmental power between the different bodies limits the ability of the government to act against the people and/or cement its rule in a way which will take the people’s power to rule away from them. The separation of powers is a historical lesson from the long-standing experience of human societies, whose essence is that the concentration of governmental power leads to governmental tyranny and the denial of freedom from the citizenry. The separation is meant to create three independent, strong authorities, each in their own field, which will limit and watch each other. The beneficiaries – both of the split and the mutual oversight of the branches of government – are the citizens.[48]

In other words, the goal of the separation of powers, and of the checks and balances between the governmental branches, is to prevent them from deviating from the mandate given to them by the people. It is a system designed to stop any one branch of government from acquiring enough power to act in a way that does not reflect the will of the people – or even harms them and their freedom. In other words, separation of powers is about checking and balancing the people’s representatives, not the people.

This truth holds with one limited caveat, as there is one situation which may offer limited, clearly defined justification for restraining the power of the people themselves: The fear of the “tyranny of the majority.” This concept is highly significant for the discourse surrounding the reform, and we will return to it later on.

In any event, this understanding of the separation of powers principle leads to the following direct conclusion: The more directly and frequently an authority is held accountable to the will of the people, the fewer limits it needs – and vice versa. In Israel, unfortunately, the inverse of this rule is what is carried out in practice: Though the Court acts autonomously and independently of any direct input from the people, its judges are not elected but appointed (in a process where elected representatives have only limited weight); Justices serve for life without being held accountable to the public for their decisions; and, of course, the Court’s decisions are not subject to any public oversight – once the Court makes a ruling, the people of Israel have no legal recourse or appeal. This reality is very much intentional and not entirely without reason: the independence of the judiciary is vital in a democratic state. In a democracy, one hopes that the judiciary can do its job without being subject to the pressures of public opinion – especially in civic and criminal matters.[49] However, the more the independence of a branch of government increases and its dependence on the explicit will of the people weakens, the more the principle of the separation of powers requires that its authority be clearly defined, limited, and checked by other branches.

This ties into the problem I started with: The Supreme Court, which acted in a clearly limited manner in the country’s first decades, is presently acting without any external checks and balances. The Court determines its own scope of authority, and has expanded it unrecognizably over the years. To appropriate President Shamgar’s statement regarding the once all-powerful Israeli Knesset: The only limitations to the modern Israeli judiciary emerge from within it, due to its freely made decisions when ruling. Well, the truth needs to be stated: the Court did not create sufficient safeguards for itself.[50] To the contrary, even in cases where justices act with restraint, they rarely claim that this is due to their lacking authority; in most cases they suffice with the statement that the question of their authority is an open one – a statement which often translated into further expansion of the Court’s power down the line.[51] Today, the court has effectively positioned itself as a branch of government which is superior to the constituent authority, subject only to the authority of the “fundamental principles of the system” – principles which it alone has the power to determine. As Lifshitz wrote:

The conduct described thus far casts serious doubt as to the readiness of the court to restrain itself. It starts with small breaches, and when the breach expands and the stolen path is trampled by many feet walking it – the breach can be further expanded, as “this was the ruling,” making it a rule which cannot be questioned or doubted at all: Silence! That’s what we thought to do. But there is room to question and doubt and not be silent. After all, we see before our eyes how the court strikes down the “constitutionality” (by its lights, when it finds it convenient) of constitutional Basic laws based on “supra-constitutional principles” which it itself determines. We have never heard of a court anywhere in the world which struck down a written constitution. But if we have not found one there, we have found one here. And it’s truly unbelievable.[52]

Despite all this, opponents of the reform describe the existing situation as normal, requiring minor changes at most. While they might admit that the court “often slides into the jurisdiction of the legislature and the executive,”[53]  it is the reform, they insist, which is set to bring about the “collapse of the separation of powers in Israel.”[54]  To justify this claim, opponents of the reform rely on the famous claim in the Federalist Papers regarding the weakness of the judiciary, which has neither purse nor sword.[55] In other words, the judiciary is a branch which is inherently harmless when it comes to the sovereignty of the people. With all due respect, this view – which was also sharply criticized at the time[56] – is not at all convincing in the Israeli case. In Israel, the Supreme Court operates under the operating principle that all other government branches and agencies must obey its rulings.[57] It has consistently often proven itself completely unafraid to tell the other branches how to act – including how the legislature must use its purse and the executive its sword.[58]

One can certainly worry about the effect of the reform on the separation of powers in various ways. But an understanding of the purpose of this principle reveals the current situation to be much worse: The branch of government suffering from the biggest democratic deficit (and thus for whom checks and balances are most necessary) is currently acting without any formal checks or balances at all.

But we cannot suffice with that. Having seen how broken the current system of checks and balances is under the current separation of powers, we must examine the likely consequences of the reform and consider  whether it would be an improvement or – as the opponents would have it – an unprecedented and unconscionable step toward majoritarian tyranny.

Let’s start with the Knesset. The principle that the legislature needs to be significantly restrained is not at all obvious. As I noted, the approach in Israel in the past, as can be seen in Mizrachi, was clear as day: The Knesset, or at least the Knesset when acting as a constituent authority, is limited by no external power, except those limits it accepts upon itself, much like the court today. There is much logic to this arrangement, the Knesset, by its very nature, still faces the ultimate democratic limitation – the need to be elected by the people on a regular basis. This limitation provides incomparable protection against the fear that the Knesset will use its power to deviate from representing the people and their interests.

Opponents claim this is an insufficiently effective mechanism. A succinct form of this view can be found in the words of Barak-Corren, who argued that elections

Occur too infrequently, and too generally […] to allow the ongoing oversight by the people over the broad, extensive, and complicated variety of state mechanisms of power. Consequently, we cannot suffice with elections as a means for ensuring government “of the people, for the people” and we need additional mechanisms of oversight of this power, who act at greater resolution, at greater frequency, and with a more rapid ability to act against actions which endanger the people or the democratic regime (and elections, which take place at fixed intervals every four years, outside the control of the public, cannot provide such an immediate mechanism).[59]

I argue otherwise. The approach which considers the limitation of the power of the legislature generally relies on James Madison’s argument in The Federalist,[60] which considers the legislature to be the greatest “suspect” authority in terms of the threat it poses to the sovereignty of the people. Madison contrasts this threat to the one posed by the judiciary which, because he regarded it as necessarily weaker, he considers less of a concern. Such an assessment can perhaps be justified in reference to the American system, but things are entirely different when it comes to Israel.

First, though it may certainly be imperfect (to say the least),[61] one thing that can be said of the Israeli Knesset is that it reflects the will of the people more fairly and directly than the U.S. Congress. As opposed to the Knesset, the members of Congress can only be selected or removed during scheduled elections, at fixed intervals. Additionally, while elections in Israel serve as a kind of periodical, general referendum, only one-third of the Congress is up for grabs in every election, such that the people can never change Congress from end to end in any given election. Most importantly, Israel has an almost total system of proportional representation, even given its electoral threshold, with the Knesset relatively reflecting the breakdown of the different groups comprising the state.  In the US, meanwhile, every seat in both houses is chosen based on a first-past-the-post system. When an American citizen goes to vote, they do not vote for a party but for a representative or senator in their district or state (usually from among just 2-3 options), without having any influence over the hundreds of others being sent to Congress.[62] Thus, despite its many flaws, the Israeli Knesset is much more representative of the breakdown of the “will of the people” than the American counterpart discussed by Madison.

Furthermore, elections in Israel do not actually occur “at fixed intervals every four years” as Barak-Corren argues. Regrettably, they happen far more frequently – too frequently, in fact. This is because Knessets rarely finish their full term in Israel. The upshot of this unfortunate reality is that it plays an important part in increasing the public’s hold on the Knesset. For, as history has repeatedly shown, when the Knesset deviates from its role as representative of the people, it is a near-guaranteed recipe for bringing down the government. True, this claim is hard to prove and may require more thorough empirical grounding. But we can see how just over the past few decades, whenever there was some dramatic event which changed the people’s attitude to the serving Knesset – leading to arguments that the Knesset has deviated from the will of the people – the result was dramatic instability in the Knesset’s functioning, leading to its dispersal, elections, and a dramatic change in the breakdown of party power. This is what happened after the Gaza Strip Disengagement, when the Kadima party rocketed ahead of Likud (2006). It happened again when the Likud-Blue and White unity government was formed, contrary to the will of a significant number of Blue and White voters (2020), and it is what happened after the formation of the “change government” preceding the present one.

Admittedly, sometimes the Knesset’s deviation from popular will creates some irreversible result, such that elections can’t really correct for the Knesset’s decision. Indeed, every model of indirect democracy involves some risk that government authorities will do things which effectively contravene the will of the people. Still, the benefit of elections remains twofold: First, they prevent the possibility that such deviation will last for long, and second, the knowledge that Knesset members can be quickly held accountable for their actions through snap elections reduces the number of cases where this needs to happen.

We should also clarify that the justification for judicial review of Knesset legislation does not rely on the assumption that the Knesset’s passing of such laws deviates from the will of the people. In fact, the opposite is the case: The court justifies striking down laws as a tool to limit the will of the people and prevent the “tyranny of the majority.” Such judicial review – which may have other justifications – cannot be accepted as a means of oversight of the Knesset by force of the separation of powers.

Thus, the legislature in Israel does not need such strict limitations on its activity in the form of “strong” judicial review that includes striking down major legislation.[63] There is of course nothing wrong in creating balanced limitations, and I believe the reform leaves significant limitations in place, such as leaving to the Court the authority to discuss the constitutionality of laws – even if it will ultimately have difficulty striking them down outright.

Chapter Three, Section Two: The “Poisonous Cocktail” Argument

Let me deviate from the central issue for a moment to clarify a particularly relevant point in this discussion. Obviously, a citizen’s vote in democratic elections does not entirely align with his views on each and every subject, but this fact does not in any way reduce the degree to which a voter is directly represented. The choice we are given as citizens is one we understand as a “package deal” and is how indirect democracy works. For instance, a citizen who is hawkish on national security and economic issues but who also believes in separation of religion and state, supports LGBT rights, and everyone sharing the military burden may end up voting for a religious and rightwing party, fully aware that he is compromising some of his views or reducing their priority. Sometimes a person may vote for a party which perfectly reflects his values, but with the full knowledge that it will be sitting in a coalition which will not allow for the advancement of issues he cares about most. The choice to prioritize and prefer certain policy goals over others is a conscious one. Politics is the art of the possible, of concessions and compromise. Accordingly, a right-Charedi coalition directly reflects the will of the secular right-wing voter, who consciously chose certain values over others. In other words, the “will of the voter,” even when the product of a political calculus, is not consequently less “authentic.”

This brings us to the “poisonous cocktail” argument. The poisonous cocktail is a concept coined by Barak-Corren,[64] involving two common arguments regarding the supposed weaknesses of the Israeli Knesset and government. According to this understanding, the Knesset is weak in that the government effectively controls it as a result of the governing coalition’s majority. Simultaneously, the argument goes,  government is weak due to chronic instability which increases the relative power of smaller, fringe parties. Barak-Corren’s innovation lies in her claim that these two weaknesses do not cancel out but rather reinforce one another in a kind of “poisonous cocktail,” with each member of the government capable of forcing their views on everyone else and onto the entire Knesset, leading to minority views within the governing coalition carrying the day “in the name of the people.”

The first part of the cocktail thesis deals with the argument that the government controls the Knesset simply by virtue of the fact that it is always supported by a Knesset majority. This is a known argument, but not at all an obviously true one. In truth, the reverse can be argued: The Knesset controls the government, since the very existence of the government depends on a majority of MKs delivering it a vote of confidence. Just as the majority of a judicial panel determines the result in the courts, so does a given majority of MKs in the Knesset determine which government will rule. In fact, merely a momentary majority of MKs suffices to bring down a government and replace it with another – even without going to elections.[65] In any event, even if we accept the common axiom that the government controls the Knesset, we can argue that aside from exceptional cases,[66] this does not amount to a democratic deficit or real harm to the principle of the separation of powers. As was made clear in The Federalist, the fact that the government has a significant impact on legislation is not, in itself, a violation of the principle of the separation of powers. Montesquieu (who coined the phrase “separation of powers”)

Did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import […] can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.[67]

In fact, a comparative study conducted as early as the 1960s, found that the principle according to which the parliament exercises legislative authority exclusively, does not exist in most countries,[68] and that the accepted norm is that the government is the dominant authority in the law-making process, and is in no way just the agent that implements the laws enacted by the parliament. The modern parliament’s unique legislative power is primarily summed up in the sense that it is still the branch discussing the bills (and working to improve them), and the branch actively voting them into force.[69]

 

Let me explain: The government’s control of the Knesset does not come from any statutory veto power, such as that possessed by the president of the United States, but rather from the very fact that the government enjoys the confidence of a majority of MKs. Obviously, if there is a homogenous government, reflecting the complete consensus of 61 MKs, there is no problem. In this case, when the Knesset votes in accordance with the will of the government, it does so in accordance to the will of the majority of its members. The problem arises when the government is comprised of a heterogenous coalition, whose members are divided on fundamental issues. In such a case, goes the argument, we may end up in a situation where one fraction of the government determines the stance of the whole of the government, which will then impose its position on the Knesset with the aid of its coalition majority.

Coalition discipline, however, should not be understood a threat to democratic representation. After all, such discipline is the result of a series of agreements between the different parties comprising the government. These agreements, in turn, mark the decision of the various parties in terms of how they prioritize the different values they claimed to stand for when up for election. As has been said, each voter puts their trust in a party with the understanding that they will not get everything they want on every issue and with the understanding and expectation that it will prefer certain goals over others. The coalition agreements and discipline, as marked by their voting patterns, represent this prioritization, which rather than undermining the will of the voter, actually helps it to be realized.[70]

The previous Bennet-Lapid government was a fascinating example of this. This government, the most ideologically heterogeneous the state has witnessed so far, was comprised of parties which seemed to be willing to swallow frog after frog simply to prevent the coalition from falling apart, including through the extensive and unprecedented use of the Norwegian Law.[71] All the parties in the coalition agreed to give up most of their aims and sit with parties which were their polar opposites simply because they saw the likely alternative as even worse. This move seemed to receive broad support from the majority of these parties’ voters.[72] Can we argue that these parties, in agreeing to these concessions, violated the will of the voters?

It’s important to stress that coalition agreements don’t encompass everything. Every government that ever existed in Israel, no matter how homogenous, had issues that split the coalition and which were not decided in coalition agreements. In other words, there are always issues that different parties decide to prioritize or deprioritize for its coalition partners. In such cases, when one faction in the government succeeds in imposing its will on the rest of the coalition and subsequently the whole Knesset, democracy is indeed undermined. But, outside of thought experiments, it’s hard to find examples of this actually happening. Historically, in most cases where fierce debates have emerged between coalition partners on core issues that were not agreed upon during negotiations, the status quo policy or approach always ends up the winner – this is generally true even if the prime minister himself wants the change. In other cases, the coalition succeeds, even in the middle of the term, to reach new agreements on issues under dispute, even if these were not anchored in the initial coalition agreements.

A prominent and obvious example has to do with the reform being discussed and debated. This issue has been “on the agenda” for two decades now. More than one prime minister expressed his desire to enact extensive reforms of the justice system, expressing his will by appointing a justice minister who was “on the other side” of the establishment. We can point to such notable examples as Daniel Friedman, Haim Ramon, Yaakov Neeman, Ayelet Shaked, Amir Ohana, and others. Still, despite the clear desire of those justice ministers and sometimes of the prime ministers who appointed them, and despite increasing support of various parties – no government succeeded in “forcing” the changes at the heart of the reform on all its members with the aid of coalition discipline enforcement.[73]

Coalition discipline does not mean MKs vote against their own views as a result of diktats from above; it means that MKs sometimes vote out of sync with their ideal position, with the conscious and voluntary aim of achieving other goals. It’s difficult, perhaps even impossible, to find cases where coalition MKs voted on an issue against their own worldview solely due to coalition discipline, without a conscious prioritization of other issues. When the coalition stance ceases to be worthwhile for a given party due to requiring it to concede too much of its values, coalition discipline will not help – hence the frequency of “coalition crises.”

In sum, the arguments regarding the government’s control of the Knesset rely, in my view, on a far too one-dimensional understanding of the concept of “will.” True, sometimes 61 MKs vote for something which only 10 MKs actually really want. But those 51 are not “suckers” or victims of extortion. They vote this way because, in the give-and-take at the heart of all politics, that issue becomes their interest. This prioritization is legitimate, and the Israeli voters – indeed, voters in any democracy – take it as a given.

This brings us to the second half of the “poisonous cocktail” thesis, according to which Israeli governments are weak because of the extortionary powers of member parties and even individual MKs. This argument is also not new and not really in dispute.[74] The innovation here is the argument that the government’s weakness combines with, and increases, the Knesset’s weakness as any small part of the governing coalition – whether a party or a few MKs – can impose their views on everyone else by threatening to bring down the government. Thus, it is claimed, a small minority is capable of imposing its views on the whole Knesset. Once again, I think this fear is far greater than the reality of the threat. Small parties and individual MKs do have relatively more power in fragile governments, but this “extortion” only holds up where it is worthwhile for other parties, as part of their own legitimate considerations, to maintain the unity of the government and advance the policies most important to them. It is true that these concessions are often far-reaching, but that does not mean they don’t align with the will of the voters, who are interested in the continued existence of that particular government – even at the cost of painful concessions. We should also note that a multiplicity of small parties may generally reduce the extortion power of any given party, as more parties means more potential alternatives for the coalition if one particular party overplays its hand. The political “blocs” in Israel tend to be fairly flexible, such that these sorts of switches can and indeed have happened.[75]

As an example, let’s once again consider the “change government.” This is ostensibly a perfect test case for the question of extortion. In the lead up to that government’s formation, the blocs in the Knesset became more rigid than ever. Still, a narrow government was formed by many small parties, operating without any potential partners from the opposition, with each party convinced that it was best to maintain the government they were in, rather than end up once again in elections. In practice, such extortion, which did come up when government positions were discussed, did not have a “problematic” effect on the legislation the government pursued in the name of the Knesset. On most controversial issues, the government maintained the status quo and avoided using coalition discipline to enforce demands not agreed to when the government was formed. Although the alternative was one which should have encouraged extortion, the moment unbridgeable gaps emerged, the result was not extortion and submission but rather the collapse of the government within a few months.

Thus, even though no-one disputes either the weakness of Israeli governments under the current setup or the problems this weakness creates – as we all saw in the past few years – there is no basis for the new argument that this weakness increases the governing coalition’s illegitimate hold on the Knesset. Accordingly, a reality in which the “coercive” coalition majority does not represent a true majority in the Knesset – even one formed solely on the basis of realpolitik – is rare to the point of non-existence.  Simply put, the talk of the Knesset’s subordination to the government is out of proportion to the danger such a possibility actually poses. In general, the governing coalition reflects the consensus of the majority of MKs and the concessions they are willing – with the backing of their voters – to make.

Even setting aside the current reform proposal, I obviously join those who think we need to improve relations between the Knesset and the government in Israel. This is a vital and critically necessary reform, and I hope the day is near when it passes. The increased power and reach of the legal system may be a brake on efforts to change the balance between those two branches of government, as each one fears changing the status quo given the existence of a third, highly powerful, and increasingly unpredictable judicial branch.[76] Removing this fear may open the way to improving the system.

Chapter Three, Section Three: The Tyranny of the Majority Argument

As noted, the checks and balances in democracy are meant to be a brake on the people’s representatives, not on the people. But there is one clear exception: systems of checks and balances are intended to serve as a check on potentially tyrannical majorities. And indeed, this is where reform opponents focus much of their efforts. It is not surprising, as Waldron has observed:

The concern most commonly expressed about the work of a democratic legislature is that, because they are organized on a majoritarian basis, legislative procedures may give expression to the “tyranny of the majority.” So widespread is this fear, so familiar an element is it in our political culture, so easily does the phrase “tyranny of the majority” roll off our tongues, that the need for judicially patrolled constraints on legislative decisions has become more or less axiomatic. What other security do minorities have against the tyranny of the majority?[77]

Waldron argues that this common argument is “seriously confused.” In his article, he develops a complex logical argument, which limits the fear of the tyranny of the majority to a very narrow band of cases. The following is no substitute for reading the original article, but it can be fairly, if imperfectly, summarized as follows: The tyranny of the majority only occurs when there is a chronic identity between the “decisional” minority and the “topical” minority. In other words, when the group whose rights threatened perpetually constitutes an unrepresented minority within the body or power making the decisions. In his view, there is no reason to assume, as a matter of course, that the legislature or, indeed, the people as a whole are prone to such corruption any more than the judges of the court. As Waldron explains:

Is tyranny by a popular majority (e.g., a majority of elected representatives, each supported by a majority of his constituents) a particularly egregious form of tyranny? I do not see how it could be. Either we say that tyranny is tyranny irrespective of how (and among whom) the tyrannical decision is made, or we say – and this is my view – that the majoritarian aspect actually mitigates the tyranny, because it indicates that there was at least one non-tyrannical thing about the decision: It was not made in a way that tyrannically excluded certain people from participation as equals.[78]

According to Waldron, the fear of tyranny of the majority only justifies judicial review in those cases where there is a prejudice against a distinct and isolated minority and a real fear that this will lead to the majority becoming apathetic to its rights. In Israel, for instance, there is room for fear from tyranny towards the Charedi minority, the Arab minority, or other such distinct cultural minorities. But, even in such cases, it’s unlikely that such tyranny will occur. This is because, first and foremost, the Israeli public is generally concerned about human rights – its own rights and those of others. The Knesset contains a consistent and far from marginal representation of Arabs and Charedim. True, Arab parties are usually present in the opposition,[79] but it’s hard to argue that this leads to their voice not being heard. Arab MKs also integrate into Jewish parties, actively participate in Knesset committees and in parliamentary activities, and so on. Even among Jewish MKs, right and left, many are interested in benefiting the Arab community.[80] I don’t mean to argue that either the Arab or Charedi community is always treated fairly by Israel’s decision makers, but I also don’t think that history demonstrates a systematic effort by Jewish MKs to harm the Arab minority or ignore its rights. It’s therefore not surprising to learn that of the 22 laws struck down on the grounds of harm to human rights,[81] barely any of them had anything to do with Jewish-Arab relations.[82]

In fact, it would seem that if there are any grounds for the fear of the tyranny of the majority, it is fear of the tyrannical treatment of Charedim. True, Charedim today are partners in almost every coalition, and their power is often even greater than their share of the population. But a number of parties exist who aim to change this, and hope to outright exclude Charedi society from decision making, calling for a “secular unity government.” In the two cases this decade in which Charedim did not join the coalition, this served to advance steps that, at least in the eyes of Charedim themselves, amounted to a trampling of their cultural and community rights.

Still, when it comes to the laws struck down on the basis of harm done to the Charedi community, the picture is grim. In fact, quite a number of laws regarding Charedim have been struck down – all laws that would have benefited them. One can of course argue that the denial of these benefits (such as striking down the draft law) does not harm a legitimate right of the Charedi society, but this is a difficulty which arises in many cases where harm to rights is claimed, and this is precisely the point: Usually, when someone invokes “tyranny of the majority,” the claim touches on a real and legitimate debate over the very definition of the rights in question – a debate that needs to be decided by the people’s representatives.

I’d like to end this section by stressing the fact that the tyranny of the majority, as opposed to the tyranny of the government, effectively assumes the corruption of the majority of the people themselves. The fear of it is the fear that the day will come when the State of Israel has a majority that is indifferent to human rights, one uninterested in protecting those different from it. Let us hope that never comes to pass. But, if such a day comes, it would be the peak of naivete to assume that the 15 citizens on the Court would remain “free” of that corruption, once it has spread to the majority of the population. In addition, as the United States learned when the Roe ruling prohibiting the restriction of abortions was overturned, the effort to “force” values on the public through the Court is not sustainable. The Court is occupied by people who may be replaced by other people with different values. Rights granted by judges can be more easily taken away than those granted by legislation. It is even greater naivete to assume that in such a society, which has largely abandoned the desire to live in a liberal, democratic country, would abide by the rulings of a Court that were contrary to the views of the public. In a state where all liberal virtues have collapsed – why would obedience to the Court somehow remain?[83]

The first prerequisite for the existence of democracy is a government that expresses a social contract, a government which draws its power from the people below, rather than imposing its authority from above. A government which does not meet this condition is not democratic; at most, it is a benevolent dictatorship. The claim of tyranny of the majority cannot go so far as to expropriate the power from the people. And indeed, unfortunately, a reality in which most of the people do not wish to protect human rights is one where the majority does not wish to have democratic government, at least not in the liberal sense. This unfortunate reality is worlds away from the Israeli reality. But if it comes to pass that the majority in Israel become sick of democracy – there will be no democracy. Democracies cannot be maintained by force, only by popular will. The superpowers that sought to forcibly create democracies in Iraq, Afghanistan, Vietnam, and many other countries, only to see it all collapse the moment western forces retreated, learned this lesson the hard way.

Let us turn now to the reform itself. Let me preface what follows below by saying that I do not intend to address each and every detail of the different arrangements; some of them have not yet been fully fleshed out (such as the precise structure of the Judicial Selection Committee), and changes will probably continue before the finish line is reached. My aim is therefore to address the general rules and discuss precise details only where they have principled, normative significance. I will also note that I will not be addressing the proposed reform of the government legal-advisory system, including the attorney general’s office, as most of the details are still being discussed, and some regard changes which may be done in the future, such as splitting up the attorney general’s office into a legal adviser to the government and creating a separate office for the country’s general prosecutor. Much has been written on the subject,[84] but It suffices for me to note that the power of the advisors in binding the government with their opinions needs to be softened, and the government and its ministers should be permitted to present their views in court, in case of a fundamental disagreement between them and their legal advisor.

Chapter Four: The Judicial Selection Committee

As we noted, the reformers have yet to form a precise, final plan for the committee’s composure. Like them, I do not have a well-formed and unequivocal position regarding the best way to balance the relevant values. However, I should clarify that I think there is no democratic flaw in the proposed model. In fact, even more far-reaching proposals, such as leaving the appointment of judges under the direct control of the justice minister or the government as a whole, would be entirely consistent with democratic principles. I think there is an advantage in giving a voice to the opposition and legal professionals as part of the committee, and that it would be best to form rules which require dialogue between the different parts of the committee before a decision is reached. These are important principles which will help to create a balanced court – while leaving the ultimate decision in the hands of the coalition, as the representative of the national majority.

The central critique of the proposed changes is that they will lead to the politicization of judicial selection. Judges – so the argument runs – appoint judges on professional grounds, while politicians appoint “yes men.” This assumption leads to two arguments. The first, and more radical one for our purposes, argues that the appointment of judges by the government will subordinate the judiciary to the executive. If we also accept the aforementioned argument that the executive also dominates the legislature, then the result is ostensibly the loss of the separation of powers.[85]

But this argument is baseless, as appointments do not mean control. There are many authorities appointed by the government – including the state attorney, the attorney general, the police commissioner, the IDF chief of staff, and so on – who are in no way “controlled” by the government. The running assumption is that the moment judges are appointed to the courts – certainly the Supreme Court – they are no longer subject to external influence until they retire. This is no small thing: The Federalist,[86] which also insisted on the great importance of an independent judiciary, pegs this independence not to how judges are appointed, but rather their fixed tenure of office, which can neither be lengthened, nor shortened (except in extreme and clearly defined circumstances), and with a respectable and fixed salary.[87] The fact that the government has the authority to appoint judges to the courts, especially Supreme Court justices, does not in itself harm the independence of judges, and certainly does not lead to the conclusion that the judiciary will become subordinate to the executive, or “collapse into it.”[88] Let me add that in Israel, as in the U.S., judges do not necessarily rule as one would expect when they were appointed. In the U.S., where appointments are clearly political, there are many “Republican” judges who ruled in a fairly activist and liberal way when they got on the bench.[89] The same is true in Israel.[90] In addition, judges obviously do not necessarily rule in favor of the politicians who appointed them. Thus, for instance, the judges whom Trump appointed unanimously rejected his claims of problems in the 2020 elections; in Israel, too – Justices Stein, Vilner, and Mintz, all three of them “conservative” justices from the period when the right succeeded in “taking over” the committee – voted against the right-wing government’s position in the matter of MK Aryeh Deri. It is therefore not at all safe to assume as a given that control of judicial appointment means control of the judiciary by the executive.

It’s also important to note that any given Israeli government tends to appoint only a limited number of Supreme Court justices during its tenure. Given the regular changes in the government in the country, there is no basis for the claim that the Supreme Court, or any other court, will become subordinate to any one government. We should also note that coalition members on the committee do not necessarily vote as a bloc. There is no “coalition discipline” on the committee and the law even prohibits the same;[91] usually, we are talking about MKs from different parties, each of whom seeks to promote different kinds of judges.[92] As an aside, I should note that the main factor which could endanger the independence of judges in terms of how they rule, is the Supreme Court president. Although judges rule based solely on their own opinion in principle, there is first hand testimony of how on controversial matters, Court Presidents apply pressure to influence judicial decisions – and even use their power to control the identity of the judges sitting on any given panel.[93]

In this context, an argument has also been raised regarding the promotion of judges from the lower courts. Addressing the proposed reform, Attorney General Gali Baharav-Miara wrote that

The role of the Judicial Selection Committee does not end with appointment to a position, but also the decision to promote a judge to a higher court […] The rulings of a judge in a lower court, on issues adjacent to public affairs, may be seen as tilted in favor of the political majority controlling the committee, which can decide whether to promote him to the district court or to the Supreme Court.[94]

And yet, later on, Baharav-Miara claims that the lower courts don’t deal with public affairs at all (and that there is therefore no justification for political appointments of the judges to these courts):

In courts throughout the country, some 850,000 cases are opened every year. The overwhelming majority of these proceedings do not deal in matters of a public-political, constitutional, or core governmental character […] Some of them are conflicts between the state and the individual, but most of them deal in conflicts between individuals. The proposal does not explain why increased political involvement is needed, all the more so political control, in appointment of judges to the magistrate and district courts, which discuss civic conflicts between individuals and corporations, divorce conflicts, or criminal cases.[95]

These arguments clearly contradict one another to a significant degree.[96] In addition, we should note that the fear that judges interested in promotion will change their rulings to find favor with the committee still exists, even today. The choice of candidates is largely based on the approach they took in their rulings while serving in the lower courts. This is the approach of all members of the committee – not just the politicians. A district court judge seeking to increase his chances of being accepted onto the Supreme Court has no reason to “suck up” to politicians, as he has not the faintest idea who will be in power when his appointment comes up for discussion. In contrast, trying to please the judges in the committee is much more effective. The judges are currently a fixed part of the committee, and they tend to vote as a bloc and promote a fixed agenda. Thus, the current composure of the committee, which is weighted in the judges’ favor, is what increases the fear that the judges will slant their rulings to receive the needed promotion.

The less radical argument, often made whenever the power of politicians on the committee increases, is that giving power to politicians at the expense of the professionals will lead to the appointment of less professional judges. I also think this argument is wrong, for a few reasons.

First, it’s important to clarify that the Judicial Selection Committee is primarily responsible for the final stage in the appointment of judges. The other parts of the process, in their current form, are directly under the control and authority of professional bodies – especially the judiciary. Every candidate for the district court or even the magistrate court needs to undergo an extensive and professional “course” run by judges and other legal and psychological professionals, without any political influence. In this course, candidates have to pass a battery of tests, simulations, and more, and are given a professional grade and a ranking in terms of their personal fitness to serve as a judge. Aside from a small number of exceptions, the committee is only presented with candidates who received high marks in this course. Obviously, such a mechanism – which as of today is not being discussed as part of the reforms – would suffice to neutralize a significant degree of the fears that the appointments adopted by the committee would not meet professional requirements.[97]

Second, and most importantly, over the past few decades, judicial representatives on the committee very clearly pushed to appoint Supreme Court justices with a specific, activist view of the judiciary. Anyone who doesn’t lie to themselves will immediately notice the fierce tensions on the committee are not between judges and politicians, as a general matter, but between judges and politicians who advocate judicial restraint. Politicians who believe in judicial activism, by contrast, tend to maintain a unified front with the judges.[98] It’s common knowledge that all the members of the “conservative wing” of the Court today (Justices Solberg, Mintz, Elron and Stein) were chosen thanks to the politicians on the committee and in the face of the principled opposition of activist judges. None of them was a candidate of the judicial bloc or appointed with their encouragement.[99] Moreover, if the judges were indeed neutral on the question of candidates’ judicial philosophy, and were only interested in their professional qualities, then no conflict should have arisen at all, and professional judges would always be appointed, albeit ones with philosophies more amenable to the politicians. But, as the constant clashes on the Selection Committee and its choices of disqualification have made clear, the kind of “professionalism” the committee rewards has at least as much to do with ideology as it does with competency.

Reform opponents believe we should not become like the United States in terms of judicial appointments, as the open politicization of the courts there has seriously undermined public confidence in the legal system. Unfortunately, the situation in Israel is far worse. Though it operates under a thin veil of professionalism and objectivity, the appointment process in Israel has become transparently and obviously political.[100] Much has been written on this politicization in terms of panel selection for hearing appeals to the Supreme Court,[101] in assigning specific judges to exclusively deal with certain controversial issues,[102] and more. In practice, when it comes to rulings touching on politics or values, it’s rare that the justices of the Supreme Court surprise anyone or deviate from their expected judicial approach.[103] It would seem the insistence on ignoring or denying the existing politicization, and instead maintaining the quite uncompelling illusion of objectivity, has only worsened public confidence in the court. A new empirical study showed how public trust in the Supreme Court has eroded in the past 25 years, in lockstep with the expansion of judicial activism, at a level unprecedented compared to the rest of the world, and relative to the Israeli public’s trust in other state institutions.[104] As this debate over reform has gone on, there has been much discussion regarding the U.S. Court’s conservative bent leading to the loss of public trust. In Israel, on the other hand, the Supreme Court has been far more progressive than the public for many years. This reality strikes me as one of the central, though rarely acknowledged, reasons for the fierce opposition to reform, mainly among progressive Israelis.[105]

Another issue has to do with opposition-coalition relations on the committee. Some attribute great significance to the fact that the alternative committee models under consideration increase the coalition’s power vis-à-vis the opposition in a way that does not match their ratio in the Knesset. I myself share the view that the more the committee becomes primarily political, the more the opposition’s presence should be increased. Still, it’s important to stress that a demand for proportional representation of both coalition and opposition MKs needs to come with a rule allowing for a regular majority for appointing judges, rather than a special one (meaning, a majority larger than just 50% + 1). The reason is that the forming of a proportional complement of both coalition and opposition on the committee and a special majority means granting the opposition disproportionate weight on the committee. In effect – and I will expand on this later – this is precisely what a special majority means: granting greater weight to minority voices.

Moreover, we should note that the demand for “proportional” representation of coalition and opposition on the committee is an illusion, as it ignores the existence of additional members in the committee, and the current reality in which these additional members (the judicial bloc) are known to always cast their vote in favor of activist appointments. This means that it doesn’t matter if the conservative approach is espoused by the coalition or the opposition – they will nevertheless be blocked from getting their people on the court.

Today, there is said to be a “mutual veto” on the committee between the judicial and coalition blocs in appointments to the Supreme Court. The “Saar Law,” passed in 2008, requires a seven-vote (out of nine) majority for Supreme Court appointments, with both judicial and coalition blocs having three members on the committee.[106] This is insufficient, as the existing mutual veto is only apparent: Oftentimes, coalition members, as opposed to the judges, do not maintain a united front or stable bloc that would allow for the use of such a veto.[107] Already when the law itself was passed, Professor Yisrael (Robert) Auman, a world-renowned Nobel prize winner in the field of game theory, warned the Knesset committee that the demand for seven votes would not lead to a mutual veto, and would instead leave the judges with more power than the politicians.[108] He argued that according to game theory, this mechanism would hand the judges more power than they seemed to at first glance (some 43% of the power on the committee) – even without the traditional alliance the judges have with the Israel Bar Association (which has two representatives). And indeed, the realization of this prophecy can be seen in the gap existing today between the number of conservatives and the number of activists on the court – even among those appointed when the coalition representatives clearly held conservative views.

Moreover, a mutual veto, even if one actually existed, does not diversify the court, and practically bars the coalition from appointing judges with a non-activist approach onto the court. It mostly leads to the appointment of “middle” judges, or those who avoid taking a side, with each side ruling out the desired candidates of the other. Instead of diversifying the complement of the court, a mutual veto generally leads to greater uniformity. Instead of choosing prominent professionals, it could lead to the appointment of compromise candidates, who do not particularly stand out in terms of their skill – especially in matters of administrative-constitutional law.

Now let us move on to changes in how the Supreme Court president is chosen.[109]

First, it’s important to clarify something which has entirely dropped off the public radar when it comes to the reform supposably limiting the Presidential term. This limitation is not at all new, as Basic Law: Judiciary already includes a section which limits the President’s term to seven years. The reform only deducts one year from that.[110]

A second point on this matter regards the “abolition” of the seniority system and the appointment of Presidents from outside the Supreme Court. The seniority system in place today means that the next President will be the justice with the longest tenure on the court when the President steps down. This method is not entirely without merit – certainly when comparing it to the option of “parachuting” Presidents from the outside. However, without taking a stance on the planned changes, it’s important to once again state that having the Court president appointed in any other way does not instantly turn him into a puppet of those who appointed him.[111]

That being said, we cannot ignore the flaws in the seniority system as it currently exists. First, the system is not anchored in law, and is merely a matter of informal custom. The law explicitly authorizes the Judicial Selection Committee to appoint both the president and deputy of the court from among the justices of the Supreme Court.[112] But the custom which has become established among the justices is that only the justice with the longest tenure will submit their candidacy to the president. Thus, based on this silent agreement, the judges have effectively taken the committee’s authority away from it without any authorization and in complete contravention of the legislative intent. If that’s not enough, the common justification for the seniority system is that it is ostensibly random and objective, preventing the need to “flatter” in order to gain promotion. Unfortunately, the seniority system is anything but random and objective. The politicization of presidential selection is alive and kicking; it just displaced, and happens in a much less convenient timing: while appointing new judges. The seniority system allows for the identification of a future president from their first day on the Supreme Court. Since they do not serve fixed terms, but rather from the moment of their appointment until their retirement at age 70, the length of their term can be calculated from the moment of their appointment and thus – if and when precisely they will be appointed President. Already when Justice Dafna Barak-Erez was appointed in 2012, it was predicted that she would become president in 2032. This information obviously plays a central role in judicial appointments.[113] In addition, the role of the president of the Supreme Court is not a judicial role or an symbolic one. It is fundamentally an administrative position. The seniority system does not allow the committee to ensure that the president has the needed administrative or professional skills – the president is after all “elected” from the day they are appointed to the court.[114] It’s not for nothing that a poll conducted recently showed that just 9% supported the current seniority system. 71% supported appointing the president on the basis of skills.[115]

An even more significant flaw of the seniority system is  due to its not being anchored in law. This ad hoc arrangement neutralizes the absence of political involvement, which is supposed to be its main selling point. Every appointment of a president in the last twenty years – including the future appointment of Justice Amit – was accompanied by a lively debate over the seniority system. Every time the proposal to end the system was raised, it was necessary to lobby and pressure the Minister of Justice in order to leave it in place and let the new president occupy the position. This happened when President Beinish was appointed,[116] when President Grunis was appointed,[117] when President Naor was appointed, and again when President Hayut was appointed.[118] Thus, the fear of presidential candidates not behaving objectively in order to flatter the committee is something which has already come to pass under the current system. At the same time, leaving the system unanchored in law also serves the “supporters” of the system, allowing them to deviate from it when it suits them. Thus, President Beinish, who often insisted on the importance of the seniority system,[119] deviated from it when she appointed judge Nili Arad as president of the National Labor Court, bypassing two judges more senior than her, and despite the seniority system being in force in the National Labor Court from the day it was founded.[120] It should be noted that no one claimed those two judges were unfit for the position. In fact, one of them – judge Yigal Plitman – even replaced judge Arad when she retired.

Chapter Five: Limiting Judicial Review of Knesset Legislation and the Override Clause

As noted, the view of reform opponents  that the court should remain empowered to strike down Knesset laws, is a matter of fierce theoretical debate. There are many in Israel who believe that the court should never have been given that authority. Already in Mizrachi, and many times afterwards, MKs were told that the “voice that prohibited is the voice that permitted,” and that the Knesset has the authority to change its mind on the subject. As President Barak noted: “If the ruling of the court, which interprets a Basic Law, is not to the Knesset’s liking, it has the authority to change the Basic Law and establish a different constitutional order.”[121] Strong judicial review of Knesset laws is not a prerequisite for Israeli democracy or a basic rule of our system of government. Any reduction of this authority would still leave broader protection of human rights than what existed before the Mizrachi ruling or at least before the passing of the human rights Basic Laws.

There are many models for judicial review of parliamentary legislation; there are quite a few countries where courts cannot strike down laws. Alongside the “strong” judicial review present in Israel, many countries have a “weak” form of judicial review in which the court is authorized to discuss the law’s alignment with constitutional norms and warn the parliament when it finds this alignment is incomplete or worse.[122] The operative assumption behind such arrangements is that the legislators want to protect human rights, and the declaration of the court on the matter will be heeded with an open mind. Certainly, in a modern, vibrant democracy like Israel, there is every reason to think that this would be the case.

“Weak” judicial review, as opposed to “strong” review, is based on a different conception of the definition of a constitution’s role. Bar Ilan law professor Gidi Sapir has elaborated on this at length,[123] arguing that there are two possible models for a constitution: the classical model, which assumes the constitution is meant to limit the will of the “coincidental” majority of the people (as opposed to the “eternal” majority), and the deliberative model, according to which the constitution is meant to ensure that the people will first have a serious and sincere debate of moral issues, through its representatives, before a decision is made. This model – present in common law countries like Canada, England, and New Zealand – assumes, like Waldron, that constitutional questions are moral rather than legal questions, and that the last word therefore needs to be that of the people’s representatives – after being discussed with the appropriate solemnity and rigor. This model justifies softened judicial review allowing the court to express its views before the legislator makes its final decision, by declaring a misalignment between the law and the constitution. Simultaneously, this model justifies an override clause. I believe it was the deliberative model which the nation’s founder, David Ben Gurion, had in mind when he noted that

The [American] constitution has become a reactionary regime which stands against the will of the people […] I believe granting such authority to judges is a reactionary thing […] Only the people determine the constitution. A constitution is what the people wants after a free discussion and investigation and after a vote. But it should not be given over to judges as they did in America.[124]

The reform, in the version advanced by Justice Minister Levin,[125] argues for the deliberative model, aiming to replace the “strong” judicial review with a gradual, intermediate approach. In cases where a simple majority of Supreme Court justices believe the law is not constitutional, this will serve to warn of misalignment, which will not harm the validity of the law, but may indeed be heeded by the Knesset, which will consider acting to fix the problem. By contrast, in cases where a special majority among judges believe the law is unconstitutional, their ruling will have stronger significance; The law will be struck down, requiring the Knesset to reexamine the justifications for this decision, while examining the arguments in the relevant ruling. If the majority of the Knesset, after discussing and examining the ruling, decides that it disagrees with the court’s decision regarding the proper balance between clashing values, then they will have the authority to pass the law anew. In order to neutralize the fear that this decision is based on some narrow coalition interest rather than the will of the people, the law will remain “probationary” until the next Knesset confirms it – meaning after the people makes their views heard in the next election – with the new coalition likely differing from the previous one. If the Supreme Court justices decide unanimously that the law disproportionately harms rights – the fear will increase that the current coalition wishing to pass it anew is doing so for some narrow coalition interest. In such a case, it will not be possible to pass the law anew until the next Knesset.[126]

It should be stressed that there is no reason to assume that the Court’s position will always fall on deaf ears. There is also no reason to assume that any law or part of a law which the court strikes down will be automatically passed anew. In the years after Mizrachi, the Court struck down a number of laws for their harm to freedom of occupation,[127] yet the Knesset avoided passing them anew – despite an override clause being enacted back in 1994. Today, it’s easy to imagine how every future ruling regarding the validity of laws will be received with righteous anger; but we need to remember that we are currently at the peak of a severe crisis between the Knesset and the judiciary. In routine times, the Court’s arguments, its recommendations to the Knesset, and the justifications in its rulings are treated with the utmost seriousness when laws are passed. It is not true that every court decision striking down a law or government decision was met with outrage and declarations of political war. There are clear empirical findings which show that there is an ongoing dialogue between the different authorities, and that the court’s words are received with serious attention by the other branches of government.[128] The reform will strengthen this dialogue, turning it from a coerced and artificial dialogue, into a true conversation – reducing the antagonism many feel towards court decisions today. We should hope that after the storm dies down, this conversation could grow into a valuable part of Israel’s lawmaking process.

Chapter Five, Section One: The Majority Requirement and the Quorum

When reform supporters note that there is no strong judicial review of Basic Laws in other countries such as England, reform critics – in this case, the attorney general – clarify that

Contrary to the explanatory preamble, Britain has constitutional judicial review. […] Judges may declare a law not aligning with human rights, and recommend to parliament to reconsider the arrangement. Although we speak here solely of recommendation authority, in practice, the political culture which has emerged over the years between the branches, is that the recommendations of the courts in Britain are considered binding, and the decisive majority of the recommendations led Parliament to enact changes in the legislation.[129]

But in reference to the proposed arrangement, the tone changes sharply:

The structure of constitutional judicial review proposed in the draft memorandum will lead to the result of judicial review being formally anchored in the Basic Law, but where the authority will remain “on paper” in practice […] In practice, the overall result of the arrangement will lead in our view to such a significant reduction of constitutional judicial review, such that if the arrangement is adopted as a whole, we will no longer be able to say that Israel has effective constitutional judicial review.[130]

Since the attorney general does not explain how judicial review will be weaker in Israel after the reform is passed when compared to the review existing in England, she ends up contradicting herself. Weak judicial review, such as it exists in England, can be considered judicial review or it can’t. One cannot argue something and its opposite. The reform will certainly not prevent the existence of weak judicial review. All that can be argued is that the reform will dramatically reduce the scope of strong judicial review – which, as the attorney general rightfully stated is not the only model for judicial review.

This gap in the attorney general’s assessment is based on the differences in “political culture” between England and Israel. This is an old argument in constitutional discourse, often offering judges convenient justification as to why they are “forced” to trespass into the jurisdiction of the legislature and the executive. It’s often argued that the British legislator is sufficiently attentive to norms and political decency in ways that our own elected officials are not – British parliamentarians, it is argued, have enough propriety to refrain from doing things that just “aren’t done,” such as appointing ministers under indictment.[131] This argument is a clear case of begging the question (petitio principii): It assumes that a standard of behavior the judge considered worthy is indeed binding to the point that it justifies increased intervention into the judgment of the other branches when they fail to recognize or live up to that standard. No less importantly, it is also a double-edged sword. A few months ago, I was present at a speech given by the Lord Chief Justice of England, Lord Burnett.[132] During the lecture, he was asked whether Supreme Court justices would consider striking down legislation in extremis. He responded that such a thing is so contrary to the British tradition of jurisprudence, with its principle of parliamentary sovereignty, that it’s hard to imagine any judge daring to consider such a thing. If the attorney general would like to compare the political cultures of Britain and Israel, it’s perhaps worth beginning here, with the English Court’s traditional awareness of what “isn’t done,” leading to an instinctive aversion to intervening in parliamentary legislation.

In any event, we can certainly address the argument in its more limited form, according to which the reform, and in particular its requirements of a majority and a quorum (a minimum number of those present on the panel), may lead to a significant reduction in strong judicial review, meaning the striking down of laws, which will be reserved for only extreme cases. According to opponents, this demand for uniformity among the judges is unwarranted, as we are dealing with complex questions and “debate is inherent to every legal issue and every system of law.”[133] Accordingly, the expectation that 80% of judges will reach the same conclusion is not reasonable, and will lead to a dramatic reduction in the scope of laws being struck down.[134] Of course, to advocates of the reform this is precisely the point.

As was said, questions regarding the scope of human rights, as well as the proper balance between them and other interests and rights in cases of concrete clashes between them, are usually questions touching on values, not law. Furthermore, it is almost always reasonable to assume that opinions will differ on these matters and that such differences would not be reducible to a question of expertise. There is, in other words, no reason to demand the nation defer to the value judgments of a small group of unelected officials on the basis of their legal training. Instead, the proper place for deciding such moral questions is the Knesset. The quorum requirement seeks to ensure that the court’s decision is not based on a random (or deliberately arranged) panel of one kind or another, and instead faithfully reflects the stance of the entire Supreme Court. Obviously, the more diverse the Court becomes, the weightier the requirement becomes. Contrary to the argument of reform opponents, this is not a major burden on the Court, for as reform opponents note in other contexts, the appeals dealing with laws to be struck down are a tiny minority of the cases the Court handles each year.[135] Moreover, even these appeals will first be heard by a simple majority, unless there is a high probability of the appeal being accepted.[136]

Let me now move onto the special-majority requirement for striking down laws. There is an argument that changes in the composure of the Judicial Selection Committee means the coalition can “control” the ability to secure a majority there. Here, it is perhaps appropriate to repeat, emphatically: appointment does not mean control. A coalition majority on the Judicial Selection Committee will ensure that the court will also have ideological views close to those of the coalition – but that’s precisely the point of diversification. The demand for a special majority seeks to reserve the power of the court to intervene in only those truly exceptional and extreme cases, where the question of whether the law harms human rights disproportionately is not a matter of interpretation or the personal stance of this or that justice, but instead “cries out” in a way that cannot be ignored. As noted, the requirement of a special majority is an anti-majoritarian tool, granting greater weight to the minority position. When we are dealing with the question of whether to grant the authority to decide core national issues to a body which does not derive its power from direct popular support, there is a democratic imperative to grant greater weight to the voice of those attempting to oppose such intervention. In any other case, where doubt or significant debate arises, the justices can still express their views and be heard – though, without being permitted to intervene in legislative decisions.

There are other sections of the reform which limit the possibility of issuing interim injunctions against laws or imposing any other limitation on its validity (such as delaying legislative efforts and preventing it from being printed in the official record or going into force). According to the attorney general, “It is not clear why there is a need to regulate and limit this issue. Moreover. It’s not clear why there is a need to address interim injunctions, especially at this resolution, specifically as part of Basic Legislation.”[137] The attorney general also notes that the current practice is clear, and that the Court generally avoids providing interim injunctions when it comes to legislation. In my view, these arrangements are necessary. The reason is all those tools serve as a way to “bypass” limitations on judicial review. The court could thus issue an interim injunction against a law and avoid deliberating on it until the Knesset that passed it is replaced. Alternatively, the court could, as part of striking down a law within the framework of existing limitations, issue an order preventing it from being printed in the official record. These are practices which aren’t used today – but there is no guarantee that their use will not increase after the Court’s ability to strike down laws is curtailed.

 

Chapter Five, Section Two: The Override Clause

In considering the proposed override clause, it is helpful to return to Barak-Corren’s argument. In her position paper, she describes the override clause as functioning to “allow the Knesset to ‘override’ a Basic Law […] by passing the law anew in a more rigid process and for a limited time.”[138] This is a common and significant terminological error, and it serves as the basis for many of the arguments of override-clause opponents. Contrary to this characterization, the override clause would not empower the Knesset to override a Basic Law, but rather to override the Court’s interpretation of a Basic Law in a given case.

This is stated quite clearly in Levin’s law proposal and in its explanatory preamble:

This Basic Law anchors an override order through which the Knesset can reject an interpretation given to a Basic Law by the Supreme Court or a specific balancing between values and interests, and override the Supreme Court ruling striking down the law […] The idea at the foundation of the override order is not an exemption for the Knesset from its commitment to the values of the constitution but rather giving the legislator the option of deciding differently from the court on the question of the balance between values and the examination of the question of proportionality in the clash between them.[139]

In making this argument, Barak-Corren was preceded by Supreme Court President Hayut, who in 2017, framed the override clause in the same way: “Those who think an override clause ‘overrides’ the court are mistaken. In truth, it is an override of human rights.”[140]

This terminological difference brings us back to the two constitutional approaches – the classical and the dialogue-deliberative – mentioned previously. While the formulation of the clause as overriding Basic Legislation assumes that the Court’s ruling is the definitive, normative, and proper understanding of a Basic Law and the rights it protects (meaning, adopting the classic model), the formulation adopted by Justice Minister Levin assumes that the Court’s interpretation is a question of values –  a question which should be ultimately settled by the people or their representatives. Accordingly, the aim of the override is to leave the decision regarding how to best interpret the meaning of a Basic Law in the hands of the people, in accordance with the deliberative model. Obviously, the different meanings applied to the term “override” lead to significant differences in the way the override would operate: If the MKs recognize the law to be unconstitutional, but insist on passing it while “deviating” from the Basic Law, then we are clearly dealing with a “second rate” law. This justifies limiting its validity (for example by setting a sunset clause), in order to avoid a permanent, internal clash between the constitutional rules of the game and the ordinary law contradicting them. This is not the case however, if we adopt the perspective of the reformers vis-à-vis the nature of the override.[141]

One could argue that the override clause is an unnecessary “hat on a hat”‘ given the quorum and special majority requirements for striking down laws in the first place, but I disagree. True, these requirements may reduce the Court’s intervention in Knesset laws, but it’s not the result that matters: The override clause expresses the normative view that the legislature, as the representative of the people, has the last word on matters of values in a democratic country – not the judiciary. Moreover, an override clause is also vital as  a tool for allowing the Knesset to override interpretations of the Court regarding Basic Laws even when the law was not struck down, thus denying its status as a precedent for judging future governmental decisions. Oftentimes, the court does not strike down laws outright, instead interpreting them with a “sustaining interpretation” that effectively empties them of content. Moreover, even when the Court rules that a given law is constitutional, these rulings are often accompanied with principled statements that include constitutional interpretation in the form of the recognition of new rights or statements regarding the scope of already recognized constitutional rights. Even in Mizrachi, where the principled authority to strike down laws was first established, the law before the Court was not actually struck down. The override clause will allow the Knesset to override such determinations by the Supreme Court, without needing to change the Basic Laws themselves.[142] As I will expand below, the need for such a mechanism will become clear if the reform also seriously constricts the Knesset’s ability to change or pass Basic Laws.

There are additional points worth considering. The first has to do with the need to ensure that the override clause does not permit the Knesset to override the Court’s striking down of a law due to its contradicting the formal entrenchment of Basic Laws, such as majority requirements. This concern is directly responded to in section 15a(13) of Minister Levin’s proposal, which states that the entire override arrangement only pertains to laws which were enacted in a process and with the majority needed “to pass them as law.”[143] Another concern involves the requirement that the Knesset will need to pass an “identical law” to that which was struck down when overriding the Supreme Court. It has been argued that this will dissuade the Knesset from reformulating the law in a way that narrows the harm to rights noted by the court in order to prevent a re-examination of the law by the Court. This possibility, it is argued, would harm the deliberative-dialogue purpose of the arrangement. This argument, in my view, justifies amending the section to say the following: “The Knesset passes a law identical to it, or a similar law serving to arrange the same matter.”

I also believe that there is room for considering further limitation of the override clause, to ensure that the Knesset would not be empowered to override laws that contradict the core governmental sections of the Basic Laws. As the attorney general stated, “In many cases, the core governmental sections are formulated in the form of a clear rule and there are no value aspects when it comes to deciding whether the law contradicts them.”[144] In addition, a narrowing of the scope of the override clause should be considered regarding laws which disproportionately harm the right to vote or hold office. This is a problematic point, since on the one hand, we are dealing with an “essential” disqualification due to the harm to a right, not a “formal” disqualification. On the other hand, this is an issue where the Knesset finds itself in a  conflict of interest, as any change in these laws could aim to preserve the power of some group in the Knesset, while harming the degree to which the people is represented – the core of the Knesset’s power and authority.

Chapter Five, Section Three: The Majority Needed for Overrides: Special Majorities and the Tyranny of the Minority

One of the central points of contention regarding the reform has to do with the question of the majority needed for overrides. Opponents believe that an override needs to happen with a special majority of MKs, not just 61 out of 120. According to them, this majority – often called “ordinary,” “occasional,” “coalitional” – entirely empties judicial review of content and power, as any government could easily override Basic Laws in this way.[145] It’s also been argued that an override needs to express a broad consensus, marked by the support of at least some members of the opposition.

These arguments miss the point for a few reasons. First, as I already noted, Israeli history, at least when it comes to the use of the already existing override clause for Basic Law: Freedom of Occupation, shows otherwise. Second, a demand for a special majority is logical when we assume that the override is of a Basic Law, which means a broad consensus is required. The argument weakens significantly when the purpose of the override is the advancement of the deliberative model, meaning that the majority of the people are left with the final word. This is about giving the representatives of an absolute majority of the people the option of making a legitimate value decision that differs from the court regarding the question of whether a particular arrangement is proportional or not.[146]

As we noted above, and as the “change government” saw time and again, getting 61 MKs within a heterogeneous coalition to all vote the same way is no simple task. This is so when it comes to routine matters, all the more so when it comes to a law involving clashes with and harm to human rights, and even more so when the Court, by majority ruling, declares the law unconstitutional. It has been argued that if all that is needed to override an Israeli Basic Law is a simple coalitional majority, then the Basic Laws are meaningless.[147] If this interpretation is true, we must wonder how Basic Law: Human Dignity and Freedom was not repealed (by a simple majority) years ago; how the Knesset did not override laws struck down based on Basic Law: Freedom of Occupation; how elections laws, which are not entrenched with special-majority requirements, have not been trampled underfoot; Why, prior to Mizrachi, did the Knesset not choose to “override” Court rulings striking down government decisions, by enacting them in legislation; Why, after Mizrachi, did the Knesset not choose to “override” Court rulings striking down ordinary laws by enacting them in Basic Laws? The answer to all these questions, is that, contrary to the commonly held and cynical view of politicians, Israel’s Knesset members generally have democratic values and genuinely want to protect human rights. Even if we were to assume that Israeli politicians were entirely self-interested, it would still be the case that their hold on power would depend on their ability to appeal to the voting public – a public which does care about human rights. An MK will think twice before voting to confirm a law when a special majority of Supreme Court justices ruled it unconstitutional. In a homogenous government, enlisting a majority may be easier, but it is also less problematic – as we noted, the more homogenous the government, the better it reflects the real majority in the Knesset, increasing the democratic legitimacy of its decisions. In any event, one possible solution which may soften opposition to an override based on an absolute majority would be the requirement of a secret vote on at least one of the votes to effect an override. This would remove the fear of a vote “forced” by coalition discipline.[148]

Finally, the requirement for a particularly high majority is problematic and creates its own democratic problems. As I already mentioned, special-majority requirements effectively give opponents more than “one vote.” Accordingly, it undermines the most basic form of decision making in a democratic country – the principle of majority rule. In other words, requiring a special majority is an anti-majoritarian mechanism of minority decision making. Justice Cheshin expressed his opinion in Mizrachi, where he noted that the Knesset, by its very nature, may not establish mechanisms requiring a majority higher than 61, as the majoritarian principle is the indispensable basis for all its actions.[149]

As Alexander Hamilton wrote regarding supermajority requirements in Federalist 22:

What at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser […] If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. […] And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.[150]

Let us return to the override clause. While the demand for a majority of 61 for overrides does not empty judicial review of power and meaning, the demand for a higher majority may indeed render the override clause itself meaningless. Requiring such a majority has meaning only if it guarantees agreement of at least a few members of the opposition. But even in calmer times, when coalition and opposition get along to some extent, the opposition, practically on principle, frequently rallies to opposition laws whose passing amount to a vote of confidence in the government – this is true even when it comes to straightforward bills like the yearly budget laws. Thus, demanding the agreement of opposition members for overriding the supreme court makes the whole affair practically academic.

On a side note, this matter also has consequences for the argument that the reform can only be passed based on broad public consensus, expressed in a large majority of MKs. This amounts to throwing sand in the eyes of the public. For decades now, there has been absolute opposition to any change in the status quo, including efforts at far more modest changes. Even today, those who speak of broad consensus, openly and unequivocally opposed any offer to compromise or even discuss elements in the reform. Even the first round of ongoing dialogue that took place in the Presidential Residence, with the involvement of dozens of public figures, academics, and jurists, has not produced any counter-proposals which did not effectively neuter the entire reform.[151] Broad consensus is certainly preferable when it comes to far-reaching changes, and one could hope that the current official dialogue in the presidential residence will have a better outcome) but it cannot be made to be a prerequisite for change, certainly when coalition and opposition are more polarized than ever. There is even a significant group of MKs currently in the opposition that once clearly supported all the elements of the current reform, but who now oppose it for purely political reasons. That does not mean the coalition does not have the responsibility to try, even unilaterally, to respond to the genuine concerns that their opponents are voicing – a topic I will return to at the end of this essay.

Chapter Six: The Need for Denying Judicial Review of Basic Laws

I began my article by describing the core governmental problems that exist under the constitutional status quo. To rephrase that argument in brief, the primary source of these problems is the Court’s turning Israeli politics into a game of Calvinball, where the Court can – and frequently does – change the rules according the political needs of the moment. The question of judicial review of basic laws, is, in my opinion, the most critical issue at the heart of the reform package. The proposed change and the argument against it, are also a perfect demonstration of the way this Calvinball is currently played, and also the desperately needed solution; stabilizing the rules of the game and establish the Knesset as the sole authority for changing them.

Though reform opponents claim that completely denying judicial review of basic laws amounts to an anti-democratic revolution, the history of Basic Laws suggests otherwise. From the day the Basic Laws were declared to be normatively superior to the Knesset’s laws, the Knesset maintained its right to enact changes in Basic Laws based on its changing will – even with a single-vote majority. As President Barak explained in Mizrachi, this arrangement is no accident. The routine ease with which Basic Laws are passed in Israel is the fruit of a deliberate decision, seeking to provide a solution for rooted disputes among the nation, which have turned the formation of a complete and stable constitution into a utopian vision:

Political reality has led to the constitution sometimes being formed not only “chapter by chapter” but also “atom by atom” […] without any exceptional social event being attached to it. […] Our constitution is the fruit of natural social development. It is the result of ongoing “evolution” and not a one-time “revolution” […] There are political and social reasons for this in Israel. Sometimes the political will to execute constitutional authority is lacking. Sometimes this is prevented due to more pressing issues. Indeed, we are different from other nations, and we have our own uniqueness when it comes to forming a constitution, as well.[152]

In any event, already in that moment, President Barak clarified that this does not invalidate the “formal identification test,” which states that a Basic Law is such simply by being called a “Basic Law,” nor does it harm the absolutely supreme status of these Basic Laws:

The absence of a binding order [meaning, a legal order making it difficult to pass or change Basic Laws], does not detract from the normative status of the Basic Law, as a supreme norm in the Israeli legal system. The absence of a binding order rules out the rigidity of the Basic Law relative to other Basic Laws, allowing a later Basic Law, adopted by a simple majority, to change or intrude on it. The absence of a chaining order does not reduce the status of a Basic Law to the level of a regular law.[153]

In Mizrachi, the Knesset officially received a new “tool”: the authority to establish a constitution which would be normatively supreme over all other branches of government and laws. This tool requires no special majority, or even any particular content or process requirements. The Knesset had but begun to explore this newly found power, however, when, in spite of the Court’s ruling in Mizrachi, arguments slowly emerged regarding the legitimacy of granting Basic Laws a supreme status with no need for a special majority or separate legislative process. Consequently, we now face the reality of a “one-sided constitution”: When referring to the Court’s power to limit the Knesset, the Basic Laws are viewed as a constitution, even though it can be easily changed. Then, when referring to the Knesset’s power to limit the court by establishing certain norms that are not subject to judicial review – suddenly, these Basic Laws cease to function as a constitution, because they can be easily changed. This is not fair play. Either the Basic Laws in their current manner are supreme, in which case they are not subject to judicial review, or they are not supreme, in which case they cannot function as a normative basis for judicial review. Judicial activists simply can’t have it both ways.[154]

In the aforementioned attorney general’s report, the reform was said “to explicitly establish that the test for identifying a Basic Law will be solely its title, without determining any limitations on the content of the Basic Law […] or the process of its legislation.”[155] However, as we’ve seen, it’s not the reform that determined these components; these were all knowingly recognized by the Court itself in Mizrachi, with the explicit insistence that such an arrangement does not harm the absolute supremacy of the Basic Law. The reform effectively seeks to preserve the rules of the game determined in Mizrachi against more recent and more radical changes. We should remember that it is the Court that demanded the Knesset view the Basic Laws as a unique creation, different from regular laws, even though the Knesset never passed them in a special process or declared this superior status to the public. These facts, already known then cannot then be used as an argument seeking to deny the supreme status of the Basic Laws retroactively.

To be sure, the current constitutional situation is problematic and complex. The Court’s recognition of the Knesset as the state’s constituent authority, without acknowledging any fixed metrics for how the constitution operates, came with a price. This price is that the Knesset can use this power to amend the constitution even frequently. This is an admittedly non-ideal state of affairs. However, now that the court realizes a mistake occurred in its one-sided “deal” with the Knesset making it not worth their while, it may not do a takeback to change the rules of the game again. In any event, it does not follow from a recognition of this problem that the Court therefore has the de facto supra-constitutional authority (that was never granted explicitly or implicitly) which necessary to solve it.

A more constructive solution to this problem was recently proposed by President Herzog as part of the negotiations over a consensus reform. President Herzog’s compromise plan included the passing of Basic Law: Legislation. This Basic Law would legally establish and regulate the constitutional status of the Basic Laws. According to the proposal, the Basic Law would anchor the Basic Laws’ absolute immunity from judicial review, but also set rigid conditions for passing or amending Basic Laws: four votes, not three, with the fourth requiring 80 MKs in favor, conducted at least three months after the third call, and not in the first six months of the Knesset’s term. Alternatively, the fourth vote will be passed with a majority of seventy MKs in the Knesset following the one which passed it by the first three votes, at least three months after it began its term.[156]

I believe the President’s proposal on this matter is correct in principle. The passing of Basic Law: Legislation is a worthy goal to strive for, meaningfully improving the Israeli constitutional process. According to various reports, in fact, the second stage of the planned reform is expected to include its passage anyway. Adding this significant component to the reform already now, with more rigid conditions for changing Basic Laws down the line,[157] could significantly soften reform opponents’ fear of further fortification of the status of the coalition and the Knesset. Still, the requirements proposed by the President are too strict and rigid. As I already noted, the country’s founders settled on Israel’s constitutional arrangement with care and purpose. It is a necessary tool, which helped the Knesset slowly but surely overcome the deep political disputes which barred any possibility for a complete and comprehensive constitution. The Israeli constitutional project has not been completed; setting such a high, fixed bar already now will make any future change or addition theoretical, thus burying the dream of a constitution for good.

It’s possible to form a more balanced framework which does include more rigid rules, but not impossibly so. Without committing 100% to every detail, I would propose the following tracks for passage of a Basic Law:

  1. A Basic Law should be passed in four votes, all requiring at least 61 MKs, on condition the fourth vote is adopted by the succeeding Knesset, not the one that passed the first three votes.[158]
  2. The Basic Law should be passed by four votes in the same Knesset, with the fourth vote requiring 65 votes, and with the support of at least some opposition members. In such a case, the law will immediately go into force, but will require the confirmation of the succeeding Knesset, by a majority of 61 votes.

We should hope that after Basic Law: Legislation is passed as part of the reform package, the day will not be far when the Israeli constitution is fully drafted and ratified – a mere 75 years after the country’s Declaration of Independence called for its creation. This long delay was greatly influenced, in my assessment, by the rising power of the court and the desire to deny it further powers.[159] It seems to me that such a constitutional status would require a renewed ratification of the whole constitution, perhaps as part of a referendum, which will also allow for establishing even stricter rules for future changes of the Basic Laws.

That being said, it should be stressed that it would be a true error to add the tightening of conditions for Basic Laws without an override clause. “Locking” Basic Laws against change without the legislator having the authority to override the Supreme Court’s interpretation of those Basic Laws, might neuter the whole reform. As I discussed at length in Chapter One, the moment the validity of a ruling is not dependent on the quality of the arguments, then “paper will tolerate anything written on it” and the court will have unlimited power.

That being said, it’s important to stress that we have learned in recent years that changes in Basic Laws do not always come from a dismissal of the eternal nature of the constitution. Sometimes we are dealing with formal, one-time changes to the system of government, forced by exceptional and difficult circumstances, in order to prevent the political system from falling into a tailspin. Such one-offs  are designed to solve a pressing political crisis and do not attempt to change the rules of the game between the branches of government or harm democratic principles. Such is the case with the amendments that anchored alternate governments, temporarily increased the number of ministers and deputy ministers, or allowed for a two-year budget.

One way to allow such moves without frequent changes in Basic Laws is to include a “flexibility section” in some of the Basic Laws. This section would state that despite what is stated in the Basic Law, the Knesset may, by a majority of its members, establish different mechanisms in the structure of government or the state budget, which deviate from the Basic Law and which would apply on a one-time basis. Obviously, the section would need to be formulated in a particularly limited way, such that the flexibility would be allowed in relation to certain arrangements determined in advance, rather than all Basic Laws.

Chapter Seven: The Need for Narrowing the Reasonableness Argument

The Reasonableness argument (in its current form) was sharply criticized the moment it came to be in the Dapei Zahav (Yellow Pages) case;[160] it would seem all that could be said has been said, and I will not repeat it here. In my view, the main problem in the current proposal is that it is too limited. Administrative legal grounds and arguments are all the result of judicial rulings, and the Reasonableness argument is no different. Nothing prevents the court from “discovering” new justifications for striking down laws that are just as artificial, undemocratic, and illegitimate as the Reasonableness argument. The current proposal states that a decision cannot be struck down “on the basis of the degree of its Reasonableness.” Nothing in this section prevents the court from doing so on the basis of “logic,” “decency,” “arbitrariness,” “proportionality,” and so on. We may have already been witness to such a linguistic bypass method recently, when the court invalidated MK Aryeh Deri’s appointment as minister while basing themselves on other grounds besides Reasonableness.[161] It would seem that it would be better to find a formulation more principled and less pedantic which would prevent such broad scrutiny of administrative discretion by the government.

Still, it’s important to address some common arguments. First, opponents claim that the law proposal does not sufficiently clarify that elected representatives will be subordinate to the law.[162] In my view, the very raising of this argument causes discomfort; the reform also doesn’t do that for citizens, or indeed judges. The implicit assumption of this argument is the opposite – which is obviously untrue. The reform seeks to narrow one oversight tool of the judiciary over the executive; a tool which is supposed to only be used in extremis, but which has effectively become one of its primary tools for intervening in its decisions. As Justice Solberg wrote: “We opened up an opening the size of a needle, and it was expanded and became the size of a concert hall.”[163] The other grounds for oversight of the government will remain entirely in force.[164]

Accordingly, there is also no basis for another argument, according to which ending the Reasonableness standard will remove the protection of individuals in society from arbitrary harm.[165] If a governmental decision harms individuals or groups in society, there is no need for a Reasonableness argument. Harm to these basic rights has been a standalone justification for the High Court of Justice to intervene in executive decisions ever since the famous Kol Ha’am censorship case in 1953 and even earlier.[166] Today, it is directly anchored in the Basic Laws, such that any executive infringement on rights needs to follow the limiting clause – including tests of authority, proper purpose, and proportionality. True, the proportionality argument – especially its third sub-test known as “proportionality in the narrow sense” – is also based on a value judgment of an executive decision, but this test is anchored in a Basic Law and therefore enjoys broader public legitimacy. It is also far more limited, examining not the judgment of the decision maker, but rather the decision’s result. It does not consider the pros and cons of the arrangement as a whole, only balancing the component of infringement of human rights with the general benefit of the action in question. In any event, a narrowing of the Reasonableness argument is not expected to deny judicial protection from those whose rights were improperly infringed by the executive.

The Israeli understanding of Reasonableness is also very unusual on the global scene. A survey done by the attorney general compared it to the one used in Canada, England, and Australia. Her conclusion is that:

There are many points of similarity between the development of Israeli law regarding the Reasonableness argument and the way it developed in the aforementioned states, where the court there also examines the weight given the relevant considerations as part of the Reasonableness test. In any event, the trend in the countries surveyed is to expand the Reasonableness argument, not narrow it.[167]

With all due respect to the attorney general, this conclusion can in no way be derived from the survey itself. In fact, the only country of the three containing a Reasonableness argument similar in some way to the Israeli one is Australia. In England, there is also a broad Reasonableness argument, but as the attorney general noted: “The expanded Reasonableness argument is tied […] to judicial review of decisions leading to harm to human rights,”[168] an expansion that is not needed in Israel, where there already exist grounds for reviewing decisions which infringe on such rights. According to the attorney general, Canada also considers the Reasonableness grounds to be relatively narrow grounds for review,[169] serving in cases of irrational justification, illogical decisions relative to the authorizing law – cases which have nothing to do with the expanded Israeli Reasonableness argument. Even the argument that these countries have expanded rather than narrowed the use of Reasonableness is not relevant. This is because this standard is already many times broader in Israel than those other countries, so efforts at restricting it cannot be compared to efforts to expand the much narrower standards elsewhere.

Another argument regards interventions in political appointments on the grounds of ethical integrity. Reform opponents claim that ending the Reasonableness argument will prevent judicial review of political appointments, which they argue is undesirable.[170] In my view, the opposite is true: The use of the Reasonableness argument in the context of appointments is the bluntest example of the Court’s intervention in the executive’s discretion on matters of values in which the Court has not even the slightest hint of a relative advantage. The question of whether a person who did something or is suspected of doing something should serve in this or that position is not a question of law, but a question of values – a question that should be answered by the people and their elected representatives. There is simply no justification for expropriating that power from the public and placing it in the hands of officials who are unaccountable to the people. And indeed, this matter is explicitly established in law: When dealing with an MK, minister, or the prime minister, it is part of the fitness rules established by the Basic Laws. When it comes to the other positions in public service, there are fitness rules articulated in other laws, regulations, and so on. These fitness rules are the way the people, through its representatives, chose to define which matters would prevent a person from being appointed to a position, and which would not. One can of course argue that fitness conditions are too lenient today. But the solution for that is getting a sufficiently large majority to change them. It is simply inconceivable that the Court would replace the people’s judgment with its own on this matter, determining that a particular appointment is unreasonable – even though it explicitly meets the fitness conditions.

Chapter Eight: Who Will Limit the Government?

The concern over who will restrain the elected government once it is in power is at the heart of the reform’s opponents’ case. They would do well to ask themselves the same thing about the Court today. However concerned they might be about the lack of restraint on the democratically elected legislature, it seems to me that the situation is far worse in regards to the judiciary under the status quo: There is, presently, absolutely no external factor serving as a brake on the Court, despite its increasing intervention in the work of the legislature and executive. On the other hand, as I have explained, I believe that even the current reform leaves significant mechanisms of protection from executive or legislation tyranny in place. Let me now summarize them below:

  1. The court. The court served as an effective oversight body over the executive long before Mizrachi. The reform does not narrow this authority, aside from the Reasonableness argument, and the court will continue to effectively oversee governmental decisions at all levels with the aid of the other arguments used in administrative law. Most of the landmark rulings which the court etched to its standard over the years, in which it protected and promoted human rights, and which are at the core of opposition to the reform in the current struggle – would not have been stopped by it.[171] As I noted, even changes in how judges are appointed will not harm the effectiveness of judicial oversight of the other branches of government.
  2. The government itself. As has been repeatedly noted throughout this essay, governments are almost always somewhat heterogeneous, and do not generally reflect a perfect dichotomy between coalition and opposition. One can oftentimes find right-wing and left-wing parties on both sides of the aisle. Accordingly, coalition-government power is not as easy to deploy, or abuse, as is commonly claimed – certainly when it comes to fundamental issues at the heart of a public debate on values.
  3. The Knesset. The focus on the government’s regular majority in the Knesset ignores the fact that the opposition in Israel can be a fairly effective oversight party. When the opposition works professionally, rather than just engaging in complete delegitimization and sweeping opposition to anything the government does (as has happened the past few years), it may also sometimes convince those on the other side of the aisle of the justice of their cause. Opposition members sit on committees, can ask questions and raise issues on the agenda, propose changes, raise fears, and as we are witness to today, organize public protests. Israel has known very effective oppositions, including those who influenced governments and even brought them down. The government’s majority does not therefore neutralize the Knesset as an oversight body.
  4. Macro considerations. The government always needs to consider its impact on the country’s political and economic strength, its relations with other countries, and the robustness of its international status. These factors, and many other, are also a significant mechanism protecting against the fear of a turn to tyranny for the sake of narrow interest.
  5. The public. Elections are certainly not a perfect oversight mechanism, but they allow the public to express trust and confidence in the different parties and its satisfaction with the performance of their representatives in the most recent Knesset term. The public influences the government’s conduct through its ability to protest and work with the media and academia. These are fairly effective oversight tools: Just recently Minister Mickey Zohar gave up on his effort to end the “Israeli Shabbat” due to brief but focused public pressure.[172] The Shas party similarly and immediately withdrew its proposed law criminalizing certain activity at the Kotel.[173]

Conclusion

The reform cannot be critiqued before first understanding the problems it seeks to solve. An honest examination of the status quo demonstrates the need for a dramatic, thorough reform of the judiciary. In my view, the need for such reform easily outweighs the limited risks that the proposed reform poses. True, the current reform – the final shape of which has not yet been determined – is not free of problems. Sometimes its solutions are overly general, while in other places it is too strident. There are many issues that need ironing out before it matures and becomes part of the country’s constitution. This process has been percolating in the hearts and minds of our country’s greatest legal scholars for a generation, and it now continues in the Knesset and at the presidential residence  – not in a blitz campaign, but through a sincere and serious dialogue being conducted by the country’s most important and influential elected leaders. Obviously, there is room for concern – much is at stake right now – but this concern should be channeled constructively, toward engaging with and improving the coming reforms, not toward obstinately and senselessly attempting to thwart them.

During this time of heightened tensions and raised temperatures, perhaps the most important thing is for politicians, journalists, and members of the public to keep things in proportion. Opposition to reforms must not mean burning it all down, or a cri de couer. This is not the end of Israeli democracy, but rather an effort to restore it after years of undemocratic accrual of power in our government’s least accountable and democratic branch.

I noted throughout the article that broad consensus cannot be the prerequisite for reform. That being said, it’s hard to remain indifferent in the face of the opening rifts within the nation over which I and many other Israelis have lost sleep. In the months since the reform was first presented, the ongoing negotiations and talks have unfortunately not yet led to an agreed-upon framework. On the other hand, these talks are proof that dialogue is possible and they give us reason to hope that many of the issues can still be reconciled. The proper next step, therefore, is to develop proposals, even if unilaterally, in accordance with agreements that might eventually be reached through good faith dialogue.

In that spirit, I would like conclude by summarizing the changes I proposed in this essay, alongside several additional ones that I think will help allay many of the fears expressed by reform opponents:

  1. The proposed Basic Law: Legislation should be passed. This law would establish limitations on changing and passing Basic Laws and outline the rules for the Knesset’s override power. In addition to these components, the Knesset should also offer a clearly defined “flexibility” section in Basic Law: The Government and Basic Law: The State Economy that would reduce the need for one-time changes of these Basic Laws in the future.
  2. The framework in which the override clause is upheld and the size of the majority needed to effect an override can be reconsidered – but only on condition that the majority and quorum requirements for judicial rulings are left as they were in the original (80% majority of a full judicial complement) or close to it. There is room to consider limiting the override clause regarding laws contradicting core governmental parts of the Basic Laws, or laws which disproportionately harm the ability to vote and be elected.
  3. It is right and proper, alongside the restriction of judicial review of Knesset laws, to expand the bill of rights explicitly anchored in the Basic Laws, such that it reflects critical rights in a democratic country, such as freedom of speech and equality. Reducing judicial review will allow such an expansion without leading to a real fear of increased intervention by the courts.
  4. Further restriction of judicial impeachment and removal should be considered. Such an action can be made conditional on the approval of 90 MKs, for instance. Furthermore, the status of the judicial preparation course should probably be anchored in law.
  5. It would also be right to include certain transition orders which limit the ability to carry out additional far-reaching constitutional changes during the term of the current Knesset, before elections can be held as a kind of “referendum” for the reform already passed.

In this paper, I aimed to lay out what I believe to be the truth. But truth cannot be established without peace. I hope the country’s leaders are able to live up to the psalmist’s injunction to “love the truth and peace.”[174] As the Sages said, “Everywhere there is truth, there is no peace. And wherever there is peace, there is no law. And what is true law? – Where it has peace, meaning [compromise].”[175]

Yechiel Oren-Harush is a former clerk for Justice Solberg at the Supreme Court. He currently works at the firm of S. Horowitz & Co. The author wishes to thank Professor Neta Barak-Corren, Adv. Inbar Asraf, Adv. Israel Rosenberg, Dafna Oren-Harush, Omri Goldwin, and Hani Koth for reading the draft and offering their insightful feedback.

[1] An exception to this situation is the position paper published by Prof. Neta Barak-Corren, Levin-Rotman Plan to Change the Judicial System: Comprehensive Analysis and Proposal for Discussion (2.2.2023) (Heb.). Admittedly, Barak-Corren is also strongly opposed to the proposed reform; Still, in the position paper, Barak-Corren asked for the first time to examine the reform in its entirety in an in-depth and factual manner, while also giving weight to the claims of the supporters. The position paper evoked public and academic conversation (and this paper will also refer to her words several times, as it represents many of the opposing arguments). For other reactions, see, for example, Ariel Ehrlich, The Legal Reform Plan – Comments on the Barak-Corren paper, the Israel Law & Liberty Forum Blog, 2.12.2023 (Heb.).

[2] The Supreme Court of Israel wears two hats: it is the highest Court of Appeal in the State of Israel, and also sits as a High Court of Justice (Bagatz), hearing petitions against various governmental authorities at first instance.

[3] See Alexis de Tocqueville, Democracy in America, (1835); Chaim Cohen, Reflections on Heresy in Public Trust, Shemgar Book 2 (Aharon Barak et al eds., 2003) (Heb.); Mishal Cheshin, Public Confidence in the Court — A Response to Justice H. Cohen and his Heretical Reflections vis-a-vis the Concept of Public Confidence, 9 Hamishpat 491 (2004) (Heb.); Ester Hayut, Reciprocity Between the Public and the Courts is the ‘Fuel’ that Allows the System to Move Properly, Globes, (11.8.2019) (Heb.); Yitzchak Zamir, Public Trust in the Court, 46 Lawyer 28 (2020) (Heb.); and more.

[4] See for example Nadav Eyal, To my friends, supporters of the Levin-Netanyahu plan, just before the abyss, Ynet (10.2.2023) (Heb.).

[5] Barchihu Lifshitz, Oh, unholy naivety, the Israel Law & Liberty Forum Blog (2.23.2023) (Heb.).

[6] Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006).

[7] Yaniv Roznai, Waldron in Jerusalem, 44 TAU Law Rev. Forum, (2020) (Heb.); Barak Medina, The plan to weaken judicial review: a critical assessment, Hebrew University  Law Faculty Blog (2.16.2023) (Heb.).

[8] Matanel Barali, Indeed, Waldron in Jerusalem!, the Israel Law & Liberty Forum Blog (12.4.2022) (Heb.).

[9] Lifshitz, pp. 3–5; Barak-Corn, pp. 2-4; Yoav Dotan, Judicial Criticism of Administrative Discretion (2022) (Heb.); and more.

[10] Dotan, p. 133.

[11] 6821/93 Bank Mizrachi v. The Minister of Finance (1995) (Heb.).

[12] the court did hint of such authority decades earlier in the case 98/69 Bergman v. Minister of Finance (1969) (Heb.), however in that case it was spoken of invalidating laws due to a formal flaw – that is, a defect in the way they were enacted – not based on their content, and it was not explicitly declared that basic laws constitute a constitution.

[13] Barak-Corren, p. 2-3.

[14] That was well expressed by former president Aharon Barak in the lecture he gave at the Bar Association annual conference on May 26, 2003. See Aharon Barak, Protect the citizen from the legislator, News1 (5.26.2003) (Heb.).

[15] Mizrachi, pp. 403-406.

[16] Noam Solberg, Values, ideals and formalism in Israeli law, the Israel Law & Liberty Forum Blog (11.13.2022) (Heb.).

[17] Ibid.

[18] . A statement attributed (also) to the American Chief Justice Oliver Wendell Holmes, meaning that dealing with an unusual and problematic extreme case is a recipe for bad legal arrangements.

[19] Christopher L. Eisgruber, Constitutional Selfgovernment, 173 (2001): “Judges take up constitutional issues in the course of deciding controversies between particular parties. As a result, those issues come to them in a way that is incomplete […] Not all interested persons will have standing to appear before the court. Judges receive evidence and hear arguments from only a limited number of parties. […] As a result, judges may not have the information necessary to gain a comprehensive perspective on the fairness of an entire social, political, or economic system”

[20] Mizrcahi, p. 406.

[21] Netael Bandel, 18 retired Supreme Court judges and presidents: “expressing anxiety about the legal revolution, Israel Hayom (2.11.2023) (Heb.).

[22] Mizrcahi, p. 519.

[23] Admittedly, it can be argued that the court maintains a certain dialogue with the Knesset by making the changes in a measured manner, which leaves the Knesset time to choose the way it wants to adjust the problematic law. For example, the court warned the Knesset about using a two-year budget law, and only after the Knesset repeated this flawed mechanism time and time again – did the court strike down the legislation. Admittedly, there is an approach that describes the current situation as a dialogue between the authorities (Bell Yosef wrote about this in detail in various papers); However, Yosef herself states that a conventional dialogue includes the legislators ability to override or ignore the courts rulling (see: Bell Yosef, Constitutional Dialogue in Israel: Two Points of View, 22 IDC Law Rev. 332 (2019) (Heb.)). In contrast, the current Israeli dialogue is a forced dialogue, between a superior authority and a subordinate authority: the existing dialogue certainly does not allow the Knesset to reject the opinion of the court, but rather allows the Knesset a narrow choice of it’s next step: Whether to amend the law and hope it pleases the court, or to abandon the law altogether. In my opinion, there is a need for a different dialogue, and I will expand on this later.

[24] 5969/20 Shaffir v. the Knesset (2021) (Heb.).

[25] Ibid., Paragraph 10 of his opinion.

[26] 4287/93 Amitai – Citizens for a proper administration and purity of morals v. Prime Minister of Israel (1993) (Heb.).

[27] Daniel Benoliel & Yuval Yoaz, The Israeli Attorney General – A Tale of a Pubic Dispute: A Conversation with Aharon Barak, 18 Mishpat Umimshal 495, 498 (2017) (Heb.).

[28] 5555/18 Hasson v. the Knesset (2021) (Heb.).

[29] Netael Bandel, Israel is rushing to the constitutional abyss – but destruction is not inevitable, Israel Hayom (2.3.2023) (Heb.).

[30] As a result of the erosion of the traditional mechanisms of standing and justiciability.

[31] see Amendments to the Basic Laws over the Years, Israel Democracy Institute (Heb.). For example, in 1998 – 4 amendments; in 2000 – 6 amendments; In 2001 – 7 amendments.

[32] Barak-Corren, p. 3-4.

[33] Admittedly, a considerable part of these countries is in principle subject to the European Court of Human Rights (ECHR). However, this subordination in no way constitutes a “strong” judicial review, since the ruling of the court does not result in the invalidation of a law, and its application depends on the good will of the country subject to the ruling. In fact, as of 2017, 46 of the 47 member states of the court have refrained from implementing at least one ruling that concerns them, see Ginger Hervey, Europe’s human rights court struggles to lay down the law, Politico (9.20.2017). Countries like Russia or Turkey are also subject to the court in principle, but consistently ignore its rulings.

[34] In general, any discussion of comparative law must always be taken with a grain of salt, since each country faces completely different social, economic and security challenges, which require different mechanisms to deal with its limitations.

[35] This principle exists explicitly in many countries such as England, Finland, Holland, New Zealand, Sweden, Norway, Denmark, Iceland, Switzerland, and more. See Dawn Oliver, Parliamentary Sovereignty in Comparative Perspective, UK Constitutional Law Association (4.2.2013).

[36] The only limitation for the Knesset’s legislation recognized up to that time, concerned the disqualification of laws that had a formal flaw: for example, laws that were passed in contradiction to a majority requirement that the Knesset itself established in the Basic Laws (see supra note 12).

[37] Mizrachi, pp. 354-355.

[38] Ibid., pp. 285-285. Shamgar also wrote the same in an article he published on the eve of the Mizrachi verdict, in which he clarified that “an expression of its sovereignty is that there is no supreme body above the Knesset that imposes restrictions on it from the outside. He who holds unlimited power can also determine restrictions for himself, that is also an expression of the Knesset’s unlimited power” (Meir Shamgar, Constitutional Legislation by the Knesset, 26 Mishpatim 3, 10 (1995) (Heb.).

[39] Mizrachi, p. 392.

[40] Hasson.

[41] The words of founder of the state of Israel, David Ben-Gurion, in front of the Constitution, Law and Justice Committee (7.13.1949) (Heb.) (hereinafter: “Ben-Gurion”), speak for themselves: “And in particular, it does not make sense to do what they did in America: give the court the authority to invalidate laws if they oppose the constitution. […] But in our own Israel, imagine that the people want something, and seven people come with the title of judges, and all respect to the judges […], and invalidate a law that the people want! In Israel this will mean revolution […] I think that giving such authority to the judges is a reactionary thing. By us there will be no such thing, the public will not put up with it. The Knesset, or if we have another parliament tomorrow, will accept a law that is based on the will of the majority, and the court will reject it because in its opinion it does not correspond to this or that verse in the constitution?!”

[42] In the early years of the state, judges were appointed directly by the government, with the approval of the Knesset.

[43] . In fact, the Israeli democracy at its first years was in an immeasurably worse state: the state was pretty centralized, and was run with outright institutionalized discrimination, where only people who held a membership card of the controlling party Mapai (the notorious “Red Book”), were able to get ahead in the country. In those decades, Israel also imposed a military regime on the Israeli Arabs. It should be noted that both the military regime and the “red book” discrimination were abolished by the Knesset, not by the supreme court.

[44] Some claim that it has already infiltrated Israel. See Rafi Raznik, The beginning of the decline of purposive interpretation and the rise of originalism? Towards an interpretative debate in Israeli law, 12 Mishpatim Online (2019) (Heb.).

[45] The Declaration of Independence is certainly not a suitable source. It was rejected as a normative source already in the first years of the state (10/48 Ziv v. Gubernik (1948) (Heb.)), and in fact the word “democratic” is not even mentioned in it at all.

[46] Cohens v. Virginia, 19 U.S. 264. (1821).

[47] Shaffir, Paragraph 28 of his opinion.

[48] Barak-Corren, p. 8.

[49] “The courts are mostly not elective or representative institutions. By this I mean not only that judicial office is not (for the most part) an elective office, but also that the judiciary is not permeated with an ethos of elections, representation, and electoral accountability in the way that the legislature is. Many defenders of judicial review regard this as a huge advantage, because it means courts can deliberate on issues of principle undistracted by popular pressures and invulnerable to public anger” (Waldron, p. 1363).

[50] Admittedly, some of the judges continued to adhere to the existence of certain restraints and sought to develop them (there are still remainders of the traditional mechanism such as standing, justiciability, maturity, etc.), but these are ‘voluntary’ restraint mechanisms, which are selectively activated by certain judges and not by others.

[51] As happened for example with judicial review of basic laws in general, and then more specifically with the doctrine of unconstitutional constitutional amendment.

[52] Lifshitz, p. 6.

[53] Barak-Corren, p. 4.

[54] Ibid., p. 6.

[55] The Federalist Papers (John Jay, James Madison & Alexander Hamilton eds., 1788), No. 78.

[56] See the words of the Anti-Federalist Brutus, in New York Journal (3.20.1788). The dispute is a factual dispute, the Federalist assumes that the judges, when they come to use their power to strike down legislation, will do so not in the name of their “will”, but in the name of the pure and objective “judgment” ability they possess. Brutus disputed this assumption; I believe that countless empirical studies conducted over the years have proven how far such objectivity is from reality. See: David Glicksberg, How do Judges Decide? Empirical Findings from the Ruling of the Supreme Court (2021) (Heb.).

[57] aside from the occasional background noises, and a few occasional exceptions, this principle is always kept. Of course, as the court’s involvement in the political sphere increases, these voices increase along with the decrease in public trust.

[58] . See Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (2016).

[59] Barak-Corren, p. 8.

[60] Federalist No. 51.

[61] As Amit Segal eloquently put it in his book The Story of Israeli Politics (2021) (Heb.): “So what does its system of government say about the State of Israel? Well, first and foremost it stems from the Israeli value that is above all, the basis of our existence here: the hackwork”.

[62] Of course, in other ways, it is regional elections that increase the bond between the voter and the elected, due to the commitment of the elected to the limited community that elected him. But in any case, this is about one elected person, whose strength of influence on the conduct of the congresses, or even on his own party – is minor. In Israel, on the other hand, given that the lists of candidates are published before the elections, a vote for a party is made based on the voter’s position on the list in its entirety. If so, then the voter is not settling for just one representative ‘answering to him’, but puts his faith in the entire party, as a force that can represent the will of its voters relative to their part of the population, something that in my opinion increases the representation relevant to our case.

[63] There are other claims that are frequently heard, concerning the fact that Israel does not have all sort of complicated mechanisms limiting the Knesset’s power, such as a Bicameral parliament, a presidential system, regional elections, or a federal government. All of this is certainly true, although the purpose of these mechanisms is not necessarily to make legislative procedures more difficult and to protect the minority from the tyranny of the majority; In many cases they are a product of unique historical or structural circumstances, and an attempt to create a fragile balance of power between competing institutions or classes. In England it is about a balance between the aristocracy (the House of Lords) and the “commoners” (the House of Commons); In the US it is a delicate balance between the various states and between theme and the federal government; and so on. As I mentioned, each state is different, and a much deeper examination is required in order to determine that the addition of such mechanisms will lead to a more ‘democratic’ result. furthermore, Israel (even if the reform goes through in its entirety) has its own unique mechanisms, which do not exist anywhere else, and which increase the courts ability to supervise the government: the broad mandate given to the court to use a purposive interpretation of the words of legislation in order to reach the preferable result in its eyes; The fact that the High Court is the first instance for any citizen who wishes to complain about the government authorities; the fact that the legal procedures at the High Court are almost entirely devoid of evidentiary or bureaucratic requirements; The fact that due to the almost complete erosion of standing and justiciability, there is a well-oiled and effective set of public petitioners, who are able to bring any issue to the door of the court very easily; and so on. As mentioned, it is not possible to point out a certain difference between Israel and other countries without presenting the full picture. The reform does not ionize the existing power decentralization mechanisms, nor does it completely castrate the power of the court to be an effective brake on the tyranny of the government.

[64] Neta Barak-Corren, On the Poisonous cocktail of Israeli democracy and the extreme problem of the High Court wars: a response to Amichai Cohen’s book “The High Court Wars – the constitutional revolution and the counter-revolution”, 45 TAU Law Rev. Forum (2021) (Heb.).

[65] Ehrlich, pp. 6-7; Rivka Weill, The Yuli Edelstein Ruling and the Chronology of the Relationship of Power Between the Knesset and the Government in Israel, 44 TAU Law Rev. 333 (2021).

[66] For example, cases where the coalition pressure resulted in the Knesset legislating without its members understanding what the law means, and without given an adequate opportunity to go through the legislative material. A single example in the meantime (although it is disputed by many), is found in 10042/16 Kvantinsky v. the Knesset (2017) (Heb.).

[67] Federalist No. 47.

[68] Michel Ameller, Parliaments: a comparative Study on Structure and Function of Representative Institutions in Fifty-Five Countries, Inter Parliamentary Union (1966) p. 151.

[69] Ibid., p. 219. See Gil Bringer, The Legislative Government, 18 Hashiloach, (2020), which presents the position that there is no democratic deficit, in the aspect of separation of powers, in the Israeli government’s ‘control’ of Knesset legislation with the help of the Ministerial Legislation Committee. bringer presents how the current mechanism strengthens private legislation in Israel, not weakens it. On a sidenote, I would like to point out that Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation, both were initiated as private, non-governmental bills. So was the amendment known as the “Saar Law”, which resulted in the “mutual veto” in the Judicial Selection Committee (see the discussion below in chapter four).

[70] Of course, there is no possibility of knowing in advance which ‘flags’ the party will give up, but this is generally part of the reasonable set of risks that a voter takes. There are, as already stated, exceptional cases in which a party completely turns its back on its commitments to voters and pays the price for it on the next election day.

[71] There are those who refer to the increasing use of the “Norwegian law” (a law allowing ministers to temporarily resign their role as MK, with their seat taken by the next person on the party’s list), as increasing the Knesset’s dependence on the government. It is interesting to remember that for many years this tool was proposed precisely in order to strengthen the Knesset’s independence of the government. See Chen Friedberg & Reuven Hazan, Policy paper 77: The Knesset’s Oversight of the Government: A Situation Picture and a Proposal for Reform, The Israel Democracy Institute, pp. 146-147 (2009). It is relatively easy to transform the existing mechanism into one that would strengthen the position of the Knesset towards the government: it can be established, for example, that a minister who has retired within the framework of the law and wishes to return to serve as a MK, cannot be appointed a minister again for a certain period. This will increase the ‘replacement’ MKs independence, making it more difficult to remove them from the Knesset.

[72] The right-wing parties that joined this coalition were viewed, at least by many of their voters, as acting contrary to the mandate given to them, but this was not the case among the voters of the center-left parties that were partners in the coalition.

[73] . for example, the Kulanu party blocked the initiatives to establish a override clause during the 20th Knesset.

[74] Weill, pp. 328-332.

[75] see: Avraham Diskin & Emanuel Navon, Policy Paper 30: Amendments to the Election and Governance System: Strengthening Governance and Representation, Kohelet Forum (2016) (Heb.) pp. 31-32; Ehrlich, p. 7. An example of this can be found in the 16th Knesset: in preparation for the disengagement plan, the modern orthodox parties were removed from the coalition and replaced by the charedi party; after a while, the Shinuy party left the coalition and was replaced by the Labor Party.

[76] It is plausible that this stagnation also affected other branches of law. In this context, it is important to mention the “conservation of laws” clause, which protects legislation that preceded the Basic Laws from the courts judicial review. It can be assumed that this protection prevented necessary changes in the legislation concerning both criminal and civil law, due to the understanding that any changes made to the law – would subject it to strong and unexpected judicial review (this concern was recognized by the court itself, in 6055/95 Tzemach v. Minister of Defense (1999) (Heb.)). It is possible that this concern is one of the factors that led to the fact that the Civil law bill (a gigantic super-law whose purpose was to codify the entire civil law in Israel, replacing many current laws) was shelved, throwing away decades of hard and intense preparation.

[77] Waldron, p. 1395.

[78] Ibid. p, 1396.

[79] Along with the Ra’am Party’s membership in the previous government, Israeli collective memory tends to forget that this is not the first time that an Arab party was a member of the coalition. It was preceded by: the Democratic List of Nazareth (1st Knesset); the Democratic List for the Arabs of Israel (2nd-3rd Knessets); the progress & Labor Party (Knessets 2-3); the Sharing & Brotherhood Party (Knessets 4-7); the progress & Development Party (Knessets 4-8); the Arab List for Bedouins & Villagers (Knessets 8). In addition, in the 13th Knesset, the parties Hadash and Mada supported the formation of the government (the second Rabin government), even though they were not officially considered part of the coalition, since they did not sign coalition agreements (but contented themselves with receiving a commitment document on behalf of the Labor Party).

[80] It is worth mentioning again that the military rule over the Arabs of Israel was terminated by a decision of the Knesset, at a time when the Arab society had virtually zero political power.

[81] See Dr. Amir Fox, How many laws have been overruled by the High Court to date?, Israel Democracy Institute (11.8.2022) (Heb.).

[82] There are those who disagree with this position and believe that the State of Israel behaves tyrannically towards the Arab minority every day. In their opinion, the low figure I pointed to shows that the court is also indifferent to the Arab rights and does not protect them against the tyranny of the Jewish majority. I do not share this position, but even so, it is evident that there is no real gap between the degree of protection provided by the court to Arab rights, and that provided by the Knesset. This may be the reason why Arab society is not an active partner in protesting the reform. See Arab society is still indifferent to legal reform. We need to explain how our lives will be affected, De Marker Podcasts (2.2.2023) (Heb.).

Similar things were also said with regards to other disadvantaged populations not taking part in the protest. It is claimed that this is because the court does not protect disadvantaged populations, but defends only the rights of the upper class and elites (See Yuval Albashan, Who Doesn’t Protect the Supreme Court, and Why?, Ynet (1.26.2023) (Heb.)). This spirit was expressed long ago by Justice Edmond Levy in relation to the law that dealt with reducing social security benefits: “Many waters have flowed in the river of legal justice since the ruling in the Mizrahi case was given, and the normative change in the status of human rights, we knew, carried with it a message to many. It carried with it good news for creditors and investment portfolio managers. it brought with it the news for the pilot course applicant and applicant to be appointed to government boards. I believe that in this spirit, it is correct to add and state that the same change also carries good news for the petitioners, as their matter is drawn from the heart of the need for constitutional recognition of the right to dignity” (366/03 Commitment to Peace & Social Justice Association v. Minister of Finance (2005) (Heb.)).

[83] See also Shaul Sharf, Rebutting the lie: The majority of the Israeli public is good because it is good – not because the High Court of Justice ruled so, Makor Rishon (3.6.2023).

[84] See Ehrlich, pp. 9-10; Aviad Bakshi, Policy Paper 10: the Legal Advice to the Government: Analysis and Recommendations, Kohelet Forum (2017) (Heb.); Gil Bringer, The Silent Kidnapping: From Legal Advisors to “Gatekeepers”, 11 Hashiloach (2018) (Heb.).

[85] See for example Barak-Corren, p. 15.

[86] Supra note 55.

[87] Accordingly, the reform proposes a hardening of the impeachment mechanism, so that a high majority in the committee, of 9 members out of 11, would be required. In my opinion, it would have been correct to consider an even more dramatic hardening, for example a determination that the impeachment of a judge would require approval in the Knesset, by a majority of ninety MKs – similarly to the procedure stipulated in the Basic Law for impeaching an MK.

[88] As Barak-Correns put it. See also Ehrlich, pp. 7-9.

[89] A famous example is that of former Chief justice Earl Warren, a Republican politician, who after his appointment to the court established “The Warren Court”; The Liberal Golden Age of the Supreme Court. A recent example is Justice Kennedy, who was appointed as a “conservative” judge but in practice joined the activist wing many times and served as a Known supporter of LGBT rights.

[90] See, for example, Amit Segal, A Line judge: Neil Handel’s Secret Meeting on the Eve of His Appointment to the Supreme Court, Makor Rishon (10.27.2018)

[91] Section 6a of the Courts Law [combined version] (1984) states that “the member of the committee shall vote according to his discretion and shall not be bound by the decisions of the body on whose behalf he is a member of the committee”.

[92] Things are different in relation to the three judges on the committee, who, despite what is stated in the law, vote, almost without exception, as one block.

[93] For example, it was published that President Naor scolded Justice Zilbartel when he ruled against her position on the question of demolition of terrorist’s homes. It is also claimed that after a contradictory ruling by justice Mazuz on the same issue, President Naor blocked him from taking part in all future panels discussing such cases. (see Gidi Weitz, Supreme Court Justice Mazuz Stunned Israel When He Retired. He Finally Explains Why, Haaretz (12.30.2021).

[94] . the Attorney General adv. Gali Baharav-Miara, Reference of the Attorney General to the Basic Law: The Judiciary Bill Memorandum (2.2.2023), p. 12 (hereinafter: the AG report).

[95] Ibid., p. 13.

[96] Admittedly, this contradiction is not absolute, because sometimes even criminal cases may be of public-political interest, for example when the accused are public figures.

[97] If that is not enough, when it comes to promoting a judge from the magistrate to the district court, there is currently another professional procedure, albeit controversial, of an unofficial advisory committee of retired judges (“the committee of two”), which formulates recommendations on the candidates up for promotion.

[98] In recent years, it is possible to point to Tzipi Livni’s second term as Minister of Justice (which resulted in the appointment of two activist judges, justice Mazuz and justice Baron, in full agreement with the representatives of the judges on the committee), as well as the term of Avi Nissenkoren (in which no judges were appointed to the Supreme Court, but in a single sitting of the committee, 61 judges were appointed to the lower courts, in agreement between the minister and the judge representatives, despite the protest of the right-wing politicians on the committee who even boycotted the vote).

[99] Of course, the judges eventually agreed to these appointments, but only when they received in return appointments of prominent activist candidates, at a particularly high rate. Indeed, every “conservative” appointment comes at a heavy price: during the time of those ministers of justice who tried to push for the appointment of conservative judges, and succeeded in appointing the four judges I mentioned (Ministers Friedman, Neman, and Shaked), many more distinct activist judges were still appointed: justices Meltzer , Danziger, Vogelman, Amit, Handel, Shoham, Zilbertel, Barak-Erez, Kara and Grosskopf.

[100] See Shaul Sharf, A Political Judge in a Democratic Society, 14 Netanya Law Rev. 171, 182-186 (2021) (Heb.).

[101] Yehonatan Givati & Israel Rosenberg, How Would Judges Compose Judicial Panels? Theory and Evidence from the Supreme Court of Israel, 17 J. Empirical Legal Stud. 317 (2020).

[102] Kalman Libeskind, The Supreme Court Within the Supreme Court: This is How Two Judges from the Liberal Left Were Entrusted with the Handling of All Immigration Policy, Maariv (2.29.2020) (Heb.).

[103] An expected ruling according to a known ideology should not be confused with partisan ruling; Conservative rulings will not always be to the liking of right-wing politicians, and activist judges will not necessarily rule as left-wing politicians wish.

[104] Aharon Gerber & Yeonathan Givati, How did the constitutional revolution affect trust in the court 53 Mishpatim (forthcoming 2023) (Heb.).

[105] In this regard, I will mention the extensive writing of Menny Mautner, according to which the court serves as a fortress of the ‘old hegemony’, which lost its exclusive control of the Knesset in the political upheaval of 1977. See, among others, Menachem Mautner, The Decline of Formalism and the Rise of Values ​​in Israeli Law, 17 TAU Law Rev. 503 (1993) (Heb.); Menachem Mautner, Law and Culture in Israel (2011).

[106] Before the ‘Saar Law’, the judges (in an automatic coalition with the Bar Association representatives) could appoint any candidate unilaterally without the consent of the politicians.

[107] Examples of such splits in the coalition’s votes can be seen in the last two terms in the committee, headed by Ministers Saar and Nissenkoren.

[108] See his remarks in Minutes 573 of the Constitution, Law and Justice Committee (6.17.2008) (Heb.), pp. 12-13.

[109] The Israeli president of the supreme court holds tremendous power. As the head of the judiciary, he is granted extensive administrative powers in relation to the lower courts, and also in relation to the Supreme Court itself. Most notably, he is a permanent member of the judicial Selection committee, holds the authority to assign the panels in the Supreme Court hearings, and the authority to order a rehearing of a case in the supreme court (See Yehonatan Givati, and Israel Rosenberg. Why do Judges Grant Rehearing Requests? Evidence from the Supreme Court of Israel, 179 J.Inst. & Theoretical Econ. 6 (2023)).

[110] It is possible that this change was intended to adjust the term of office to that of other office bearers, such as the attorney general.

[111] What’s more, according to the current proposition, many governments will receive a president ‘inherited’ from the previous government. Not every government will appoint the president to serve during its term.

[112] section 8(a) of the courts law.

[113] justice Solberg, for example, who was also appointed in 2012, is expected, according to the seniority system, to be appointed president in 2028 for a term of about four years. Solberg was a candidate for the Supreme Court as early as 2009; If he had been appointed at that time, he might have been appointed president as early as 2023, for a term of about nine years. See Chen Shalita, Controversial judge: Noam Solberg emerges as the prominent candidate to replace Mazuz, Globes (10.11.2009) (Heb.).

[114] This problem is exacerbated in cases such as judges Barak and Barak-Erez, where a future president is appointed from outside the legal system. In such a case the future president is selected, even before he wrote a single ruling.

[115] Globes survey: these are the changes the public wants to see in the legal system, Globes (2.3.2023) (Heb.).

[116] See Aviram Zino, Uniformity of punishment: Beinish flexes a muscle against Ramon?, Ynet (6.20.2006) (Heb.).

[117] See Gilad Grossman, Beinish: “Breaking the seniority system will lead to politicization”, Walla (7.4.2011) (Heb.). This case is more acute than the others: several years before the appointment of President Grunis, the law was changed in a way that blocked his path to the presidency (by setting a minimum term of office for the president, higher than the remainder of the term remaining for Grunis), and was expected to significantly extend the term of President Naor. Close to the retirement of President Beinish, the law was changed once more to allow the appointment of Grunis – while ‘cutting’ Naor’s term.

[118] See Yael Fridson & Tova Tsimuki, Naor: Abolition of seniority will damage public trust; Shaked: the most senior general is not appointed as Chief of Staff, Ynet (7.9.2017) (Heb.).

[119] See, for example, Sharon Pulver, Dorit Binish on the possibility of canceling the seniority system: the most dangerous thing for the legal system, Haaretz (3.27.2017) (Heb.).

[120] Yuval Yoaz, Steve Adler retires: Who is Neely Arad, the incoming president of the National High Court?, Globes (11.15.2010) (Heb.). Even earlier, Justice Arad was appointed vice president, also contrary to the seniority system.

[121] Barak, supra note 14.

[122][122] So is the legal system in England, New Zealand, and other common law countries.

[123] Gideon Sapir, The Constitutional Revolution: Past, Present, Future (2010) (Heb.); Gideon Sapir, More on the Override Mechanism, the Israel Law & Liberty Forum Blog, (11.24.2022) (hereinafter: “Sapir”).

[124] Ben-Gurion, supra note 41.

[125] MK Rothman’s bill allows the override to be carried out ‘in advance’, without the law ever reaching court, and therefore undermines the deliberative purpose. In general, I would note that as far as judicial review is concerned, Minister Levin’s bill is superior, as it is considerably more detailed and complex than that of MK Rothman, and includes many components that balance each other, alongside components that seek to block “bypassing” the arrangement with other tools.

[126] If the next Knesset re-enacts it, it will teach that its position is not based on extraneous considerations, and therefore it will prevail.

[127] For example, 1715/97 Israel Investment Managers association v. Minister of Finance (1997) (Heb.), which invalidated a law that regulated the work of investment managers, and 1030/99 Oron v. Speaker of the Knesset (2002) (Heb.), which invalidated a law regulating the broadcast of radio Channel 7 – both due to violation of freedom of occupation.

[128] see Yosef, supra note 23.

[129] the AG Report, pp. 19-20.

[130] Ibid., p. 35.

[131] “At the same time, we will remember that the depth of the court’s intervention and the scope of the court’s intervention in the actions of the government will be determined according to the ways of the government’s leadership. Indeed, a government guides its ways – in any case, it should guide its ways – among other things, by obeying the rule that instructs us : “it isn’t done” (or: it won’t be done that way in our place) […] And so, as the area of ​​it isn’t done expands, so will the area of ​​the court’s intervention shrink, and vice versa: blessed be A society in which the culture of it isn’t done is embedded in its ways of governing. Blessed is a court that is not tasked with ruling on issues in which the culture of it isn’t done is decisive, and the obedience to it distances them from its halls” (1993/03 The Movement for The Quality of Government in Israel v. The Prime Minister (2003) paragraph 45 of Justice Cheshin’s opinion (Heb.)).

[132] The 2022 Lionel Cohen Annual Lecture of the Hebrew University of Jerusalem (5.30.2022).

[133] Barak-Corren, p. 16.

[134] Ibid; the AG Report, p. 37. This claim does not rest on solid foundations from a factual point of view. Of the 22 laws that have been invalidated by the court to date due to violations of human rights, the absolute majority were accepted by a majority of eighty percent of the judges of the panel or above.

[135] “Out of about nine thousand cases opened in the Supreme Court each year, only about two thousand are petitions to the High Court and other administrative proceedings. And even among these petitions and proceedings, issues that can be termed as having a ‘public-political’ nature, such as constitutional proceedings or government decisions on public issues, are a relative minority” (The AG Report, p. 14) – it is clear that the cases concerning the invalidation of laws constitute an even smaller minority.

[136] Section 15a(k) of the bill. The attorney general claims that this section is also problematic, because it will increase the judges workload, since thy will have to examine the case ‘twice’. However, this is not an unusual situation, but something that occurs many times even today. For example, motions to appeal are first discussed before one judge. If he believes that the motion has merit, or that the decision involves a matter of a principle, many times he is required to transfer the case to a panel of three judges. In addition, even today panel judges are given the authority to expand the panel if they deem it necessary (See Section 26 of the Courts Law).

[137] The AG report, p. 38. The attorney general notes that there is a problem with the possibility, listed in the bill, for the Knesset to use the overruling clause even if the court only granted an interim injunction regarding the law, without a detailed final judgment. On the one hand, sometimes postponing the validity of the for three months could lead to it missing its purpose entirely. It is not appropriate, then, to block the way of the legislator from overcoming such a delay. On the other hand, the attorney general is right that such an override, even before the court has explained its reasons, is inconsistent with the dialogic-deliberative purpose of the overriding clause. I believe that this problem is a derivative of the very problematic nature of using an interim injunction in order to delay the entry into force of a law, even before the court has discussed the validity of the law in an orderly manner. In my opinion, the proper solution is to enshrine the current policy, and to state that in petitions concerning the validity of a law – the court will not be allowed to issue an interim injunction suspending the validity of the law.

[138] Barak-Corren, p. 17.

[139] Basic Law: The Judiciary (Amendment – Law Reform) Memorandum, distributed on 1.11.2023, p. 3.

[140] See Zohar Shahar Levy, President Hayut attacks the overcoming clause: “Destructive meaning”, Calcalist (5.7.2018) (Heb.). The attorney general wanted to claim that this was not a terminological mistake, but rather a position bound by reality. Thus, when she discussed the requirement that a overruled law should include the words “despite what is stated in the court’s ruling” she argued: “This wording causes difficulty […] since the court is the authorized interpreter of the law, the overriding is not the ruling of the court but the overriding is a provision in the basic law. the wording of the provision ‘despite the said’ should reflect this” (the AG Report, p. 43). Well, this claim is another case of begging the question. Without discounting the fact that the court is, usually, the authorized interpreter of the law, the drafters of the reform believe that when we are dealing with questions of value concerning the manner of balancing conflicting values ​​in a specific law, the court is not a more authorized interpreter than the Knesset; In fact, the attorney general explicitly acknowledged this even earlier: “The theoretical starting point [of the reform] is that the court does not have the monopoly on constitutional interpretation” (ibid., p. 41). Accordingly, there is also no base for the attorney generals’ words according to which “the wording of the override clause in the proposed manner obscures the fact that the law contradicts a basic law provision and emphasizes the conflict between the authorities and not the dialogue between them”. On the contrary; This wording emphasizes that the overriding is done within the framework of a dialogue between the authorities, and does not constitute a ‘trampling’ of the basic laws by the Knesset.

[141] Sapir, p. 6.

[142] It should be noted that in the current version of the bill, the possibility of using the overriding clause to overcome an interpretation, is not sufficiently specified. In my understanding, the current wording hints to this: “The Supreme Court ordered the annulment of a law, the annulment of a part of it or the limitation of its validity” – meaning, if the court empties a law of its content with the help of interpretation. It is appropriate to anchor such an override explicitly.

[143] This also addresses the widespread concern that the Knesset may also override provisions relating to “extending the term of the current Knesset” (see the AG report, p. 42); According to Section 9A of the Basic Law: The Knesset, such a change would require the consent of 80 MKs, so it would not be possible to override it.

[144] Ibid.

[145] Way back when, as I sat as a student in Prof. Barak-Korens course in constitutional law, I learned that “ordinary majority” and “accidental majority” are a majority of 2-1, and this is different from requirement of 61 votes, which is a “special majority” or “absolute majority” of the Knesset members – a requirement that is not easy to meet, and is considered a mechanism protecting Basic Law previsions, which should not be underestimated.

[146] Sapir, p. 6.

[147] See for example Barak-Corren, p. 18.

[148] Admittedly, secret voting in itself opens a problematic door for Knesset members to deviate from their constituents, but it seems that this limited use, only in relation to override clause, does not constitute a significant flaw.

[149] Mizrachi, p. 543: “A living and functioning governing body in a democratic regime – and that is the Knesset – we will not recognize its legal authority to establish such an anti-democratic rule regarding its own activities. As long as our regime is a democratic regime, the principle of the majority will rule over us […] If this is the law, then making a demand for the consent of 62 members of the Knesset (and above) to change a law, means – to be honest – the rule of the minority and the cancellation of the principle of the majority. This authority was not bought by the Knesset, and we are strictly prohibited from recognizing such authority”.

[150] Federalist no. 22.

[151] See, for example, Shlomo Piotrkovsky, President Herzog Presents: Outline of Half the People, Makor Rishon (3.17.2023) (Heb.).

[152] Mizrachi, p. 402.

[153] Ibid., p. 408.

[154] See supra note 25.

[155] the AG Report, p. 47.

[156] The full outline is available online, at https://www.mitve-haam.org.

[157] It goes without saying, as is also apparent from the President’s outline, that there is no reason to demand that the reform itself be accepted on the same rigid track that will be established in it. This demand is not fair and will make the implementation of the reform an impossible task, thus determining the wrong situation in which we find ourselves. The balance of power must first be restored to a more balanced state, and only then “set them in stone”.

[158] this track was also suggested by Barak-Corren, p. 26.

[159] See Ehrlich, p. 5.

[160] 389/80 Dapei Zahav Ltd. v. The Broadcasting Authority (1980) (Heb.). See for example the position of President Landau in said ruling; Moshe Landoi, On Judiciary and Reasonableness in Administrative Law, 14 TAU Law Rev. (1989) (Heb.); Yoav Dotan, Two Concepts of Deference – and Reasonablenes, 51 Mishpatim (2022) (Heb.); Noam Solberg, On Subjective Values ​​and Objective Judges, 18 Hashiloach (2020) (Heb.); Noam Solberg, The Deri-Pinchasi Rule in light of Reasonableness, the Israel Law & Liberty Forum Blog (1.13.2022) (Heb.).

[161] 8948/22 Scheinfeld v. the Knesset (2023) (Heb.).

[162] Barak-Corren, p. 20.

[163] Solberg, On Subjective Values ​​and Objective Judges.

[164] President Hayut noted in her speech at the conference of the Association for Public Law (1.12.2023) a list of cases in which ‘proper’ use was made of reasonableness, but in most of these cases there was no need for it; The same result could also be reached based on the ‘classic’ administrative grounds for intervention. In addition, most of the administrative decisions mentioned by the president violate human rights and are therefore covered anyway under the protection of the basic laws.

[165] Barak-Corren, p. 21

[166] 73/53 Kol Haam Ltd. v. Minister of the Interior (1953) (Heb.).

[167] the AG Report, p. 58.

[168] Ibid., p. 56.

[169] Ibid., p. 57.

[170] Barak-Corren, p. 21.

[171] 1/49 Bejarno v. Minister of Police (1949) (Heb.); Kol Haam; 4541/94 Alice Miller v. Minister of Defense (1995) (Heb.); 721/94 El Al Israel Airways v. Danilovitz (1994) (Heb.); 8821/09 Prozhansky v. Laila Tov Productions Ltd. (2011) (Heb.); 6698/95 Kaadan v. Israel Land Administration (2000) (Heb.); and many many more.

[172] Uri Sela, Miki Zohar: The events on Shabbat will continue – they are also good for Shabbat keepers, Walla (1.24.2023) (Heb.).

[173] Yehuda Schlesinger, Amir Ettinger & Ariel Kahana, After the public criticism: The Western Wall Law will not come up in the Ministers Committee next week, Israel Hayom (2.9.2023) (Heb.).

[174] Zechariah 8, 19.

[175] Tosefta Sanhedrin, 1, 3.

 

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