With debate in Israel raging over the government’s proposed judicial reforms and with President Herzog’s compromise proposals yet to bear fruit, Fathom Deputy Editor Jack Omer-Jackaman sat down with Professor Amichai Cohen to discuss implications of the reforms. Professor Cohen is a senior fellow at the Israel Democracy Institute, and a faculty member at the Faculty of Law at Ono Academic College. His research deals with constitutional law and international law. He is the author of The Wars of the High Court. Their conversation has been edited for clarity.
JOJ: Israeli proponents of judicial reform repeatedly reference comparative examples of other democracies – Canada and New Zealand are often cited – to argue that in no comparable democracy does an unelected judiciary enjoy such power to override the decisions of elected politicians. You have written that ‘Israeli democracy is universally unique’, and therefore such comparisons and moves to implement similar systems can only take us so far. Can you expand?
AC: Political power in Israel is extremely concentrated. Israel doesn’t have two houses of parliament; there is no federalism, local governments are very weak, there are no states like in the US, no devolution like in Scotland, Wales, and Northern Ireland in the United Kingdom. All political power is concentrated within the Knesset and the government. There is no external institution which limits political power – Israel is not a member of the EU or organisations like the European Court of Human Rights. There is thus no external review.
Members of Knesset are also extremely un-independent. The system is not like the British constituency system, where the member of parliament has some independent legitimacy because they were elected in a specific place and responds to their constituency. In Israel an MK is a member of a party list which is highly controlled by the head of the list.
The result is that Israeli democracy is unique, and political power is highly concentrated in the hands of a very few people – the heads of the coalition parties. Currently in Israel, five or six men control all political power. There is no other institution which can contradict their decisions from a political point of view.
Whether this was a historical accident or by design is questionable. (I think it was by design due to Israel’s history and establishment.) But this is not the main question. Political power is currently extremely concentrated and the only limitation on government is the legal limitation imposed by both the Supreme Court and by professional, independent legal advisors within the government, working together.
Such limitations are an extremely important part of democracy. Democracy is built both on the idea of elections – majority rule – and on checks and balances, some kind of limit on political power. I believe that weakening the existing limitations on political power will put Israel in a unique position among democracies around the world, with all the power concentrated even more in the hands of very few people. Granted, these people are elected, but even if they are, democratic governments require limitations, even on elected institutions.
JOJ: Can you explain the question of a Knesset override of Supreme Court rulings. At present, no override exists, something the government seeks to remedy with a simple majority rule.
AC: Almost all democracies – I know the UK is an exception – have judicial review of legislation. In the past 30 years this has been the situation in Israel. The Supreme Court has the authority to invalidate or strike down legislation of the Knesset if that legislation contradicts the Basic Laws which, in the Israeli system, are considered supreme. The court having this authority is not in any way unique – it exists in most democracies. In the past 30 years or so the court has invalidated 22 laws or articles in specific statutes – not a lot of cases. Of course, the government doesn’t like the fact that the court possesses this authority
The override clause, especially if it only requires a 61 simple majority, means there will be no effective judicial review of legislation, because the Knesset will be able to overcome any decision of the court to strike down a piece of legislation passed by the Knesset on the grounds that it contradicts a Basic Law. It makes some sense to use the override clause if it’s a significant majority that requires the assent of the opposition – that the coalition should consult and gain some support from the opposition. But what the government offers now undermines the entire system of judicial review.
JOJ: What about the question of removing the ability of the court to strike down administrative (not legislative) acts on the grounds of ‘reasonableness’. I think this is one of the least understood aspects of the reform. How does this currently work in practice and what the effect of its removal would be?
AC: The idea that ‘unreasonable’ administrative decisions of the government – actually ‘extremely’ or ‘patently’ unreasonable – can be struck down by the Israeli court is an idea that Israel took from the UK. In famous decisions in the UK, the court spoke about the ‘irrationality’ of decisions of the administrative agencies, and this developed over the years.
The unreasonableness grounds means that decisions of administrative agencies will be invalidated by the court if the decision maker did not take into account or sufficiently balance significant interests that they should have taken into account. One Israeli example is building schools in areas near the Gaza Strip that were not protected against missiles – the court said this is unreasonable. So, it’s judicial review over administrative decision making.
There is criticism, granted, over the way the court has used these grounds, and if you want to understand why politicians view the patently unreasonable doctrine as extremely inconvenient, it’s because the court has also used these grounds for striking down the appointment of ministers or other high-level persons. This was done almost exclusively in cases where the person in question was indicted for corruption, so the court said that appointing a person (who, in the case of Shas leader Aryeh Deri, has been convicted for corruption and evading taxes) is an unreasonable decision. Politicians are obviously unhappy with this.
The reform proposal suggests completely annulling the entire grounds for striking down on the grounds of patent unreasonableness of the decision. This would undermine an important part of judicial review of administrative actions. The court’s ability to do so is not controversial – it’s a universally accepted principle. Sometimes administrators do things that they shouldn’t do and the courts are there to limit their discretion.
JOJ: One of the justifications for reform of the Judges Selection Committee is that the present system ensures that the courts continue to lack diversity. How do you respond?
AC: These claims are actually a ‘moving target’. At first there were (correct) claims that there were not enough women in the court, so women were appointed in larger numbers. In lower courts there are now more women judges than men, while the last two presidents of the Supreme Court have also been women.
Later, there were arguments that there were not enough religious judges, so there was a large move to appoint religious judges to all levels of the judicial branch. Right now, there are four religious judges on the Supreme Court – more than their share of the Israeli population. Then there were claims that there were not enough conservative judges on the court. Conservatives were subsequently appointed and now there is a large conservative bloc – not a majority but a large minority bloc. Currently the charge is that there are not enough judges of Mizrahi (Jews whose families originally immigrated to Israel from middle eastern and north African countries) origin, which is in some sense true of the Supreme Court but not of lower courts, where Mizrahim are represented, if not exactly by their share of the population, then in very large numbers.
The point is that even when the right-wing was in power and controlled a large bloc in the committee, they did not push for more Mizrachi judges but rather for more conservative judges. From my point of view, claims of lack of diversity are a way to undermine the legitimacy of the court. The court should not reflect exactly the population but should be diverse. It’s important for the court but it’s not its main problem.
The goal of the reform programme is complete government control over the committee. Under the reform proposals [giving the government a stable majority vote on the committee] the ruling coalition will be able to appoint any judges it wants.
JOJ: Why is the independence of legal advisors to ministers important? What effect would a change to the existing system have?
AC: Once again this has to do with the unique system that developed in Israel and the point that there is a very small nucleus of people exercising political power and control of the coalition. One response to this concentration of political power was the development of a professional and independent government legal service, headed by the Attorney General. In Israel the Attorney General is a professional appointment, appointed by the government but not a member of it. They head the entire government legal service and ministerial advisors are also professional appointments, not appointments made by the minister.
Most importantly, their opinion reflects the definitive legal position for the government – when an official or minister in the government wishes to promote a plan and a professional legal advisor says it is against the law then the minister must abide by this, unless it is overturned by the court, usually the Supreme Court. They can also appeal to the Attorney General, whose decision is final regarding what is the law as it is now. The Knesset can of course change the law but regarding the interpretation of existing law, the Attorney General’s decision is final, unless the government petitions the court against the interpretation.
In the eyes of the government, this is a serious limitation on its authority and consecutive governments have attempted to change it. The current proposal is explicit, saying that the positions taken by the Attorney General, and all legal advisors, will only have the status of advice and the minister or government will not be obligated to follow it.
JOJ: Both sides in this debate claim a defence of democracy. From the government, we hear a definition of democracy confined to the will of the majority. Can you explore the limitations of that rather narrow conception of democratic culture?
AC: There are two problems with majority rule. First, democracies, almost universally, have representative governments. We have representatives who vote for us. By definition, therefore, we have what’s called in economics a ‘principal agent problem’: do the representatives reflect the will of the actual majority? It’s always a problem in democracy, because there are other things which affect how representatives act: interest groups, the need to be re-elected, the need to gain money for that re-election, their own personal interests, the simple fact that on most issues that are subject of public discussion there is not a clear majority so our representatives have to make adjustments and compromise on our interests.
The second problem with majority rule is the need to limit the power of the majority to take away the rights of the minority. We go to elections and a majority elects a government, but the majority cannot do anything – there are limitations on its power and these limitations specifically concern the rights of ‘discrete and insular’ minorities: those minorities that do not really participate in government. In Israel, for example, there is a large Arab minority which has Knesset representation but is usually – almost always – not part of the ruling coalition. (There was an exception with the last government and this is one of the main reasons which brought about its downfall.) Arabs are not usually part of majority governments, and this means that their rights are sometimes not taken into account by the majority and there is some protection that democracy should provide for their essential rights – human rights, civil rights.
JOJ: Proponents of the government sponsored reform often refer to the Supreme Court as inappropriately ‘activist’. They point to the tenure of former Supreme Court President Aharon Barak as marking the beginning of this. You’ve said that, contrary to this view, the early ‘90s were not years of judicial revolution, but evolution. That, in fact, now is the time of real revolution. What did you mean?
AC: In order to understand this claim I have to speak about the political history of Israel. When Israel became independent in 1948, it was controlled by the antecedent of the current Labor Party (the Mapai). It governed in coalition, but it was the main party – the Prime Minister and the important members of the government came from this party. This was so until 1977. When they were in power, Mapai did not use the parliament to control Israel, but instead used the bureaucracy. The reason was simple: in parliament they always had to compromise with other parties. But they completely controlled the civil service, so important decisions could go through bureaucracy without the need to consult other parties.
As a result, the important part of judicial review was not review of legislation but of administrative actions, because all important decisions were made within the administration. The court indeed reviewed decisions of the administration but did not review legislation at that time. It neither considered it had the authority at that time nor was it that important.
In 1977, this all changed. The Likud party came to power and since then the Likud has been in power much more than any other party. The Likud did not have control of the bureaucracy, which remained run by the old guard [of Mapai] so it began increasingly using legislation. Step by step, judicial review evolved with the government – the government used legislation more and more so we started seeing more judicial review of legislation [rather than administrative matters], because that was the means of making important decisions.
We also need to see it against the background of the universal development of liberal democracies of that time. At the end of the 1980s and the beginning of the 1990s, liberal democracy, of which judicial review is an important part, was at its height. And governments in Israel accepted limitations on their power as legitimate. They enacted Basic Laws reflecting this – on Human Dignity and Liberty, in 1992, for instance. The relationship between government and the court was considered a natural part of the evolution of Israeli liberal democracy. Another example: in 1991, Israel joined all major international human rights treaties – the International Covenant on Civil and Political Rights, and the Convention against Torture, for example. There was an evolution of liberalism and rights within Israel that of course was reflected in the way that the court applied liberal values towards government decisions, and in some cases, though not many, in judicial review of legislation.
What’s going on now is a revolution. The proposals of [Justice Minister Yariv] Levin and [the Knesset’s Constitutional, Law and Justice Committee chair] Simcha Rothman are to completely overturn the entire evolution that took place over 30 years and go back to the pre-1992 era. We can’t go back, simply because we are a different country and a different generation. But in one giant move they are trying to dismantle the entire structure of judicial review that was built here over a generation.
JOJ: You have discussed the distinction between genuinely conservative proposals for reform and populist proposals. Can you elaborate on the distinction in the Israeli case and explain why you think the current moves don’t fit a truly conservative model?
AC: There were several genuinely conservative ministers of justice – for example Ayelet Shaked between 2015–2019. She was a conservative in the sense that her values were different, more traditional perhaps than the values reflected by the court, which at the time had a large liberal majority. Her position was that, within the system, more conservative judges should be appointed. Step by step, she appointed five relatively conservative / less activist judges to the Supreme Court. On [the issue of whether the Supreme Court can strike down administrative decisions based on the grounds of] ‘patent unreasonableness’, for example, most of her appointments think that review of appointment of government ministers should not be taken by the court. [While the court’s recent decision 10-1 decision to bar Deri from serving as a minister cited the ‘reasonableness’ criteria, its conservative judges instead highlighted Deri’s violation of the estoppel principle. They argued that he had misled the Israeli magistrate’s court hearing his 2021 corruption trial by suggesting he would retire from public life as part of the terms of a non-custodial sentence.]
It’s a completely legitimate way of politics that, if the court oversteps in the eyes of the politicians, then actions by the political institutions should be made to confront the way that the court acts – such as changing the composition of the court. That’s part of the political struggle, and if the court decides cases with political implications this is what should be expected from conservative politicians.
What we are seeing now is completely different. It is not a problem with a specific decision of the court or an attempt to appoint more conservative judges – it is a complete refusal to accept the fact that government should be limited by a court at all. It’s not a question of ‘ok, we accept limitations but maybe they should be less strict’, or ‘we have different values so let’s change the composition of the court.’ This is an attempt to change the structure of Israel from a constitutional democracy, where there are limitations on the authority of the government, to a regime where once political power is achieved then no limit on political power is legitimate. This is called populism in Political Science.
JOJ: What’s your perspective on Attorney General Gali Baharav-Miara’s recent message to Prime Minister Netanyahu that his involvement in judicial reform is a conflict of interest, given his own ongoing legal case?
AC: The opinion of the current Attorney General actually follows in the footsteps of the previous Attorney General [Avichai Mandelblit]. Then, of course, there were not suggestions for an entire judicial overhaul. But he followed a decision of the Supreme Court based on a petition brought regarding the continued service of Netanyahu as Prime Minister. The court ruled that it could not prevent Netanyahu from serving but that he should be limited in his access to judicial reform.
We all understand the problem. There is a trial of a prime minister going on, it’s a unique experience, not a regular one in democracies. The question is whether the Israeli democracy will survive this experience where the Prime Minister continues to serve – and is once more elected to do so – while there is an ongoing trial against him. The conflict of interests, even if he doesn’t deal with judicial reforms specifically, is immense. How can we think of any decision regarding the proposal for reform in the judicial branch as detached from the interests of the Prime Minister? Even if the people publicly promoting it – Levin and Rothman – pursue it independently? How can they not be in conflict, how can it be un–connected? It defies logic.
JOJ: What do you think the implications of reform might be for the relationship between the judiciary and security policy such as the rules of engagement and potential exposure of Israeli personnel to international jurisprudence.
AC: It cannot be denied that a lot of international criticisms against Israel relating to its policies and uses of force were either blocked or diluted because of the universal appreciation of the independence of the Israeli Supreme Court and the government legal service in Israel, and their ability to act as a check on government in security and armed conflict with regards to the territories. It goes without saying that if the courts and legal service are significantly weakened, then the international community will look differently at Israeli actions. Perhaps even if Israeli actions themselves don’t change, there will be an issue of whether there is sufficient power to review the actions of the government and the armed forces and police. This is coupled with the fact that the current government includes several persons who have voiced significant criticisms regarding the legal limitations put on the IDF, both within the territories and the Gaza Strip. So, there might be more international intervention.
Israel is now facing both an investigation in the International Criminal Court and a pending case in the International Court of Justice regarding its control of the territories. Both of these cases, I assume, will be affected by the weakening of the Israeli Supreme Court. However, I don’t think decisions in Israel should be taken because of international pressure. I think Israeli politicians, the Israeli public, and Israeli institutions should make their own decisions. They should be aware of international pressure, of course, but decisions regarding its future as a vibrant democracy should remain in Israel.