[The following article originally appeared in Hebrew at the Mida news and commentary website, and is translated here with permission, with only minor editorial adjustments. - Ed.]
Much will yet be written on the Supreme Court ruling handed down last night (Monday), per which the Supreme Court has the authority to review not only ordinary Knesset legislation, but even Basic Laws themselves.
Whether it’s the timing of the ruling (the middle of a war), the time pressure to complete the ruling in time for President Hayut to leave her mark (if it had been handed down later, the decision would have been reversed), or the consequences for Israeli democracy (which has been mortally wounded, as we will soon see) – this is another outrageous chapter in the history of Israeli constitutional law.
What’s the most important thing worth noting in the ruling?
The answer can be found in the two central arguments given by most of the justices, based on various grounds, arguments which mean that Israel is now a juristocracy or government by judges, not a democracy, no matter how you slice it.
First Argument: The Israeli Knesset is Not All Powerful, and the Court is Responsible for Outlining the Boundaries of Its Authority
According to the majority opinion, Israel no longer governs based on the principle of “parliamentary supremacy.” Although this was the court’s own position for many decades, a position which logically derives from the first constitutional revolution (per which the Knesset’s Basic Laws are a constitution) and which some of the minority justices still support, the majority opinion insists that the Israeli Knesset is limited in its powers – even without a constitution.
Specifically, the ruling states that the Knesset is not permitted to pass legislation, even basic legislation, which contradicts or denies the “core characteristics of the State of Israel as a Jewish and Democratic state.”
Second Argument: Israel has a “Democratic Deficit” Filled by the Supreme Court Through Judicial Review – Of Basic Legislation, Not Just Regular Legislation
According to this line of thinking, Israeli democracy is flawed and rickety, a house of cards set to collapse with the slightest pressure. Given the unique characteristics of the country’s constitutional structure, which includes the “chapter-by-chapter” formation of a constitution, the absence of a fixed method of establishing and amending said constitution, and the control of the political majority in making use of the Knesset’s constituent authority – judicial review, in President Hayut’s world, is the only effective brake on the power concentrated in the government’s hands.
It is in this spirit that Justice Amit referred to the “absence of mechanisms of checks and balances in Israel’s legal system which restrain the power of the government, in a manner granting it unique power.” The obvious conclusion from this state of affairs, according to him, is that “an addition of mechanisms for strengthening the democratic regime is necessary, while the amendment that is the subject of our discussion marches in the opposite direction; it strengthens the executive authority even further and harms the founding principles of our legal system.”
These arguments complement and inform one another. They establish the Supreme Court as the ultimate and final guardian of the Israeli “constitution.” This is a court which now has the final say regarding governmental arrangements and which chooses when and how to limit the Knesset. The basis for all this veers between the Declaration of Independence, the universal rules of justice and morality, and even the Basic Laws themselves in a constant act of sleight of hand or perhaps three-card monte.
This is a court which designs constitutional arrangements solely through rulings and new theories, with the court serving as its own and sole source of authority to interpret the law in any way it sees fit.
Israel’s judges are of course entitled to their own personal views on questions of economics, strategy, religion, and also democracy and the system of government. There is no problem with claiming that a system of government in which parliament is supreme is a fundamentally flawed one. True, this argument is far from obviously true, but it is legitimate and worthy of attention.
There is also nothing wrong with wanting to add limits to the government with the aim of filling what is considered by someone to be a “democratic deficit” (an unfortunate choice of words in itself; the judges are after all interested in limiting the power of elected representatives, not add to it. They are worried about an excess of democracy, not a deficit).
But the fact that our Supreme Court justices are dissatisfied with the current quasi-constitutional structure does not mean they have the authority to change it themselves or save Israeli democracy from itself based on shaky legal theories.
The question “Is the Knesset all powerful” needs to be answered by the Israeli people, not the court. There are, furthermore, innumerable answers to the question of when and how to check the Knesset’s authority. There is no consensus or “scientific” answer which the court can bring to the people as though they were Moses bringing down the tablets from Sinai.
This is first and foremost a messy, political question, not a legal one, and it is precisely the question properly ironed out and debated in a democracy by duly elected representatives. Justice Solberg noted this in a statement attributed to him. A determination by the court per which there is some limitation on the Knesset’s authority effectively abolishes the basic democratic foundation of popular sovereignty via its elected representatives.
As Solberg was summarized as saying:
“Not only does the court lack the authority to strike down Basic Laws, it lacks the authority to decide a prior question: is the court the one with the power to decide if it has the authority to strike down basic Laws. This sort of ‘conflict’ between authorities does not happen at all in the legal world, and cannot be decided by legal tools.”
The question “is the court all powerful” or “what are the limits of the court’s authority” must therefore also necessarily be answered by the Israeli public, not the court itself, if we wish to truly be a democratic political community.
The case of judicial review of major legislation and Basic Laws is a classic example of a democratic, not a legal question. Judicial review of major legislation and articles in the constitution can be desirable or intolerable in the eyes of a given citizen, but it is in no way a prerequisite for a functional democratic regime.
Every democratic political community is free to choose whether to adopt or reject the granting of judicial review powers to the court, at any level of legislation. The law of nature has no such authority, nor does the Declaration of Independence.
A reality where the court defines not only the limits of the Knesset’s authority but also its own, establishing itself as the supreme and indeed exclusive oracle of the country’s core principles of government, is a reality in which an entire branch of government has broken free from any subordination to the law or the rule of law.
As Justice Mintz emphasized, every branch of government and judicial court may not act outside the authority given it by law:
“The court must take care to operate solely within the bounds of its authorities, with the same diligence it takes when questions of authority emerge regarding the other authorities. In this context, the authority to review laws does not rest on solid foundations, and there is certainly no source of authority which allows the court to discuss the validity of a Basic Law or strike it down. The development of doctrines critiquing the content and essence of Basic Law ex nihilo undermines basic democratic fundamental values including the principle of the separation of powers, the principle of legality, and the principle of the rule of law. Striking down a Basic Law based on a vague doctrine and an undefined formula, contains a heavy price from a democratic perspective, certainly when it comes to an issue where the court itself faces an ‘institutional conflict of interest.’”
In placing itself above the Basic Laws of the Knesset, the Supreme Court has turned itself into an all-powerful authority – it, and only it, has the source code to the “essential core” of our system of government, and only it has the power to decipher it. It and only it has the power to strike down major legislation in the name of supra-legal principles.
If the judges were appointed on a political basis like in the United States, we could perhaps find some comfort. But when elected representatives are in the minority on the Knesset’s Judicial Selection Committee and the judges themselves have a veto on judicial appointments, we have no choice but to conclude that the Israeli system of government is a democracy in juristocratic packaging.
Dr. Sagi Barmak is head of the Adam Smith Program for Political Economy and Public Policy at the Tikvah Fund