Barak Medina, Professor of Law and the Rector at the Hebrew University of Jerusalem, discusses the current Israeli constitutional crisis prompted by proposed judicial reforms...
For scholars, constitutional (or unconstitutional) revolution is an opportunity to test theories about legal and political changes, democratic legitimacy, identifying what the rule of recognition is, and more. But on the ground, a process of democratic backslide is mostly a matter of grave concern, fear, stress, and sometimes even anger. It requires determination, dedication, and the refuting of fake arguments. The fight for democracy raises dilemmas, for instance about the neutrality of academia, and the role of institutions in taking part in a seemingly political campaign. The state of Israel is in the process of attempting to amend the state’s constitutional legislation, and if successful the move is expected to result in practically eliminating judicial independence, paving the way for further illiberal policies. While the government enjoys a stable majority in parliament (the Knesset), the initiative faces unprecedented criticism and public unrest, making the outcome still hard to predict.
Israel’s current constitutional structure is a unique one. The original design, set forth in the state’s Declaration of Independence in 1948, required drafting a written constitution and a Constitutional Assembly was indeed elected for this purpose. However, this body failed to fulfill its mission. The Assembly decided that the country will function without a written constitution and appointed itself as the legislature, known as the first Knesset. However, the Constitutional Assembly did not rule out the possibility that a written constitution could be drafted in the future, by determining that the legislature is empowered to enact Basic-Laws, that will serve as chapters in the would-be Constitution.
The Assembly left critical issues unresolved, namely what majority (and what procedure) is required to approve these Basic-Laws, and what is their legal status until they are grouped together to form Israel’s Constitution. Despite these and other unfavorable conditions, Israel maintained a well-functioning democracy. Over the years, the Knesset enacted several Basic-Laws that determined the electoral system and the powers of the various bodies of government, including the Supreme Court (sitting also as a High Court of Justice). While the Court employed judicial review of administrative actions, it refrained from reviewing the validity of legislation, due to the lack of explicit limitations on the power of the legislature in a written constitution.
Israel has been a well-functioning democracy in terms of having free elections and peaceful change of power between political parties. The judiciary has enjoyed complete independence, with judges appointed by a committee composed of representatives of both the Supreme Court and the government. However, Israel’s human rights record has been imperfect. Primarily, its constitutional identity as a Jewish (and democratic) state has often translated to policies preferring the interests of its Jewish citizens over those of its Arab-Palestinian ones, as well as in violating some aspects of the requirement of separation between state and religion. The most severe divergence from the principles of democracy resulted from Israel’s occupation, that started in 1967, of millions of Palestinians in the West Bank that are not Israeli citizens but are subject to its governmental powers.
An important change, which is at the heart of the current crisis, occurred in the early 1990’s. In 1992, the Knesset enacted the Basic-Law: Human Dignity and Liberty, which explicitly provides that legislation that infringes human rights is valid only if the infringement is for proper purpose and meets the requirement of proportionality. In 1995, the Court ruled that this Basic-Law, and in fact all Basic-Laws, enjoy constitutional status. It means that while these Basic-Laws are not formally Israel’s written constitution, their provisions limit the power of the legislature, and that the Court is empowered to declare legislation invalid that is incompatible with them. The Court was quite restrained in employing this power, declaring legislation invalid in only 20 cases over a period of almost 30 years. The change, sometimes referred to as Israel’s ‘Constitutional Revolution,’ did result in a gradual change towards a greater commitment to liberal values, for example in ruling that treating Jews and Arabs differently is absolutely prohibited, and providing greater human rights protection, mostly in issues of freedom of speech. The political branches accepted this development and while expressing disagreement on various occasions with specific rulings, the limitations on the legislature and the Government, and their enforcement by the Court, enjoyed a high level of popular legitimacy.
In recent years, however, public sentiment has started to change. Right wing parties, including those that represent Ultra-Orthodox Jews, have expressed strong illiberal positions and have launched an effective campaign against the Justices of the Supreme Court, primarily against the power of judicial review of legislation. At the heart of the campaign is an opposition to basic liberal values, including the right to equality (mainly in the contexts of gender equality and the right of Palestinian citizens to equality) and various aspects of tolerance, as well as Israel’s activities in the Occupied Territories. The Supreme Court was marked as a bastion of liberalism that should be toppled and reclaimed, they argue. These concentrated efforts proved successful in the November 2022 elections, in which a coalition of parties that share this ideology won a small majority in the Knesset and formed a new government. In addition to this ideological motivation, there is a concern that the Prime Minister, Benjamin Netanyahu, who is facing criminal charges for corruption, might abuse this sentiment for his personal benefit and self-preservation. For example, one possible outcome is that doing away with judicial review will make it possible to enact a law that will bring the Netanyahu trial to a halt.
The new government was quick to initiate legislation, in the form of amending current Basic-Laws, to substantially limit the power of judicial review. The initiative that is currently being discussed in the Knesset and is supported by a slim majority, includes three main provisions: all judges, including Supreme Court Justices, will be appointed by a committee in which the ruling coalition enjoys a decisive majority; the Supreme Court will be able to strike down legislation only if all 15 Justices approve this result (or, according to another version, by a majority of at least 12); and an Override Clause will empower the Knesset to reenact legislation that was declared invalid. To protect this reform, the proposal also includes a provision that denies the Court the power to review Basic-Laws. The expected result is limitless power for the government to infringe basic rights and promulgate policies that are currently unconstitutional, some of them already having been presented, including collective punishment of family members of terrorists, gender segregation in public events, discrimination against Arab citizens, and more.
The enactment of this reform is expected to result in breaches to fundamental aspects of democracy. It will substantially limit the independence of the judiciary and its powers and as a result, remove most legal restrictions on governmental actions. A strong popular opposition against this plan was formed, with unprecedented rallies, statements of concern by all major universities, businesses, and influential public intellectuals.
At the heart of the legal debate is the power of the Knesset to amend existing Basic-Laws. On one hand, these laws are not entrenched, and formally speaking, they can be changed by a regular majority, as is expected to happen soon. Moreover, the 1990s decisions have based the limitations of the Knesset’s powers and the Court’s power to enforce them, on provisions in the Basic-Laws, and if these laws are amended to remove this power, the Knesset will have the upper hand. However, there are counter arguments, that are generally considered more convincing. As indicated, the Basic-Laws are not considered as a written Constitution, primarily because they are enacted just as regular legislation. As such, reviewing the validity of these Basic-Laws does not raise the complicated question, dealt with by some democracies, of the possibility of declaring a constitutional amendment unconstitutional. The power of the Knesset to amend Basic-Laws is limited by the fundamental principles of democracy, that are the basis of its power to enact Basic-Laws. Israel’s unwritten constitution, which provides that the state is a liberal democracy with limited government, restricts the powers of the Knesset. It was empowered by the Declaration of Independence to enact Basic-Laws, and this Declaration explicitly provides for the state’s commitment to the basic values of liberal democracy.
As things currently stand, Israel is facing a clash between two bodies of government. The Supreme Court is expected to declare these amendments, if enacted, invalid, notwithstanding the explicit provisions denying this power, and the government is expected to respond by denying the Court’s democratic legitimacy to make this ruling. This conflict, if it materializes, is of great concern, and it will have to be resolved by reference to sociological evaluation, to identify the applicable rule of recognition. This will amount to a move from the rule of reason to the rule of power, a development that it is hoped will be avoided. Moreover, if the limits of governmental actions are indeed removed, the concern is that Israel will quickly join the ranks of countries that maintain only a skeleton-like democracy, that hold free elections but deny basic human rights and violate the requirement of separation of powers, which is at the heart of the system of governance known as democracy.
Professor Barak Medina holds the Justice Haim Cohen Chair in Human Rights at the Faculty of Law of the Hebrew University of Jerusalem. He has served as Dean of the Law Faculty (2009-2012), and since October 2017 he has served as the Rector (Provost) of the Hebrew University. He is a graduate of Tel-Aviv University (LLB, BA and MA in economics), Harvard Law School (LLM), and the Hebrew University (PhD in economics), and served as a Visiting Professor at the Law Schools of Columbia University in New-York and University of California Berkeley.
Professor Medina’s research interests include constitutional law, and economic analysis of law. His scholarship includes research on theoretical, comparative and positive aspects of the right to equality, freedom of speech, judicial review, constitutionalism, and more. Professor Medina authored seven books. Among his books: the latest editions of the most authoritative book on Israeli constitutional law (with Amnon Rubinstein), and a book titled Law, Economics, and Morality (with Eyal Zamir), on incorporating deontological thresholds to the economic analysis of law. His most recent book is a 1,000-page volume on Human Rights Law in Israel. His latest article (published at TAU Law Review) discusses the question, does Israel have a Constitution?
Suggested citation: Barak Medina, The Israeli Supreme Court’s Independence Must Be Protected, JURIST – Academic Commentary, February 16, 2023, https://www.jurist.org/commentary/2023/02/Barak-Medina-Israel-constitutional-crisis/.
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