JCRC urges Israeli government to slow judicial overhaul, seek national consensus on reforms
March 13, 2023
By Steve Hunegs
Surrounded by a region of autocracies and failed states, democracy in Israel has survived and thrived through the most profound challenges possible, including the ongoing scourge of terrorism and unrelenting existential military threats from its neighbors. Israeli voter turnout is among the highest in the world.
As do all democracies, Israel faces the inherent challenge of respecting the democratic electoral process while needing a mechanism to assure that majority rule does not impair individual and minority rights.
Israel is now on its 37th government and 25th Knesset – some elections have been decisive, others less so. Coalitions of the left, center & right, secular, religious Zionist, and Ultra-Orthodox, have come and gone.
Israel lacks a formal constitution, and therefore issues of governance have been determined by its parliament (the “Knesset”) and by its Supreme Court. Over time, a system of checks and balances has arisen, with the Knesset promulgating a series of “Basic Laws” which enshrine certain fundamental rights and with the Israeli Supreme Court assuming the power of judicial review (just as the U.S. Supreme Court did in the early days of the Republic in the landmark case of Marbury vs. Madison.)
Though the struggle to balance individual rights and majority rule is often challenging, relative equilibrium has been achieved with democracy respected and the rights of minorities protected by Israel’s independent judiciary.
This system allows the country to thrive in many spheres. Israel’s well-deserved reputation as the “Start-up Nation” is dependent upon foreign investors trusting Israel’s governmental and legal stability. Additionally, the fact that Israel has an independent and well-respected judiciary is frequently cited by Israel, the United States, and other allies as an argument for why unwelcome foreign judicial intervention is unnecessary for adjudicating allegations of alleged human rights violations by Israel’s defense forces and police.
Now, this delicate system of governmental checks and balances is undergoing intense scrutiny.
A judicial overhaul bill is being advanced by Israel’s current governing coalition, whose members are unhappy that certain elements of their agenda have been thwarted by the Supreme Court. To cite just one example, the Israeli Supreme Court recently blocked the leader of the Ultra-Orthodox Shas party from assuming the Finance Ministry due to his past criminal convictions for tax fraud.
Some aspects of the judicial overhaul proposal would severely limit the power of the Supreme Court to protect minority rights, such as a provision that would allow the Knesset to “override” a decision of the Court by a bare majority of the current Knesset. Other provisions would essentially give the governing coalition the power to “stack” the Court with political appointees.
These provisions, the breakneck speed by which the judicial overhaul is proceeding, and highly inflammatory public statements by key radical right-wing members of the governing coalition condoning the use of violence against Palestinian civilians have led to widespread criticism both within Israel and by its friends and allies. Israelis, including elite reserve air force pilots, have participated in massive peaceful protests, and many leading American Jewish organizations have issued statements expressing deep concern.
Our JCRC joins these expressions of profound apprehension about not just the substance of the proposed judicial overhaul but the deep divisions within Israeli society that these initiatives are so demonstrably exacerbating.
While some critiques of the current system may have merit, the process of reform needs to be measured and must result in a healthy balance of power between the Knesset and the Court. Ironically, the tumultuous controversy over judicial overhaul is itself a powerful exercise in Israeli democracy. The debates roil the Knesset while hundreds of thousands have taken to the streets in protest for over two months. These protests have only grown larger as the ruling coalition seems intent on pushing forward with the judicial overhaul plan, despite its broad unpopularity and the negative impact the proposals are having on the Israeli economy and society.
Ultimately it is the prerogative of Israelis to decide how their government can best protect majority and minority rights. Our concerns, however, are fully consistent with Israeli opinion polls which reveal that an overwhelming majority of the Israeli public does not believe that the proposed reform bill represents the “will of the people.” The same poll reveals that a strong majority also wants the government to reach a broad consensus compromise with the opposition and is deeply concerned about the impact of reform on the economy, social cohesion, and civil liberties.
In the tradition of Israel-diaspora relations, the Jewish people globally have many points of view and commentary to add to the debate—hopefully in a loving and constructive vein.
In this loving and constructive vein, we urge the government to embrace the plea of Israeli President Isaac Herzog to slow down and to commence an inclusive deliberative process properly crafted for such consequential change. It is essential that fundamental change of this nature reflects a genuine national consensus, not merely the preferences of a fleeting government coalition.
The result should be one which maintains the promise that Israel made to the world and to itself 75 years ago in the Declaration of the Establishment of the State of Israel, specifically, that Israel would be both the Jewish State and a nation which “ensure[s] complete equality of social and political rights to all its inhabitants.”