The current judicial reform plan would give a ruling coalition unlimited power, remove the separation between branches and create conditions that could degrade democratic institutions in Israel, senior Kohelet fellow and head of its economic forum Dr. Michael Sarel warned in an essay published on Wednesday.
“The proposed reform will create a situation in which there will be no separation between the authorities, by subjecting the judicial system to the will of the coalition,” he wrote, in his personal opinion.
With an automatic majority over the Judicial Selection Committee and other measures, the coalition would control the executive, legislative and judicial branches, Sarel warned.
While it might be desirable to enact the reform’s proposal to make legal advisers’ decisions nonbinding to advance government policy, that is only reasonable in a liberal democratic framework if it is checked by a powerful independent court to which an appeal can be made if these policies violate rights, the economist said.
The coalition would be able to pass Basic Laws and regular legislation as it wishes thanks to the government’s restrictions on judicial review and an override clause, he said.
“The proposed reform gives almost unlimited power to the coalition,” Sarel wrote. “The reform currently being promoted raises my fear that any coalition, in the present or in the future, will significantly erode the principles of representative democracy.”
“Power tends to corrupt; absolute power corrupts absolutely,” and with absolute power, a ruling coalition would be tempted to use this power to ensure that the coalition would retain it, he said, adding that there could be a temptation to fix elections or limit dissent to this end.
“Separation of powers is one of the most important, influential and successful ideas in human history,” Sarel wrote. “Separation of powers is based on a political-legal relationship between the branches of government, characterized by checks and balances that prevent abuse of power by one branch of government.”
While proposed reform did not adequately address the issues in the Israeli legal system, the reform’s supporters correctly identified the problems plaguing it, including placing the “main blame for these flaws in the judicial activism that has developed in Israel in recent decades,” he said.
Judges and Bar Association representatives on the Judicial Selection Committee formed an automatic bloc due to self-interest, Sarel said.
The High Court of Justice had expanded its powers, with little restriction, allowing it to intervene in any issue, he said, including administrative decisions with which it had been increasingly interfering.
The court had been engaging in judicial review using a de facto constitution that it had cobbled together from Basic Laws during the 1990s constitutional revolution. The attorney-general’s powers were also criticized, since the attorney-general was not acting as an adviser but as a boss who dictated legally binding policy.
Sarel said he was certain that the Kohelet Forum, which has been at the forefront of advocacy for judicial reform, would work both to improve Justice Minister Yariv Levin’s plan and find a balance of power that would fix the current problems in the system.
How did Kohelet respond to Sarel's comments?
In response to Sarel’s comments, Kohelet said it is home to diverse personal opinions and supported discourse and efforts to form a broad agreement with the reform’s essential principles intact. What united Kohelet’s fellows was the pursuit of a strong State of Israel with individual freedom, representative democracy and economic prosperity, it said.
“The Kohelet Forum has had a clear position since its establishment in relation to the need to balance judicial activism and anchor the supremacy of the Knesset in order to secure the political rights of the citizens of Israel,” Kohelet said. “The proposed reform will strengthen Israeli democracy and curb a worrying trend of the erosion of citizens’ ability to influence their destiny without harming the liberal character of the state.”
The Economists Forum welcomed Sarel’s comments, saying he had joined hundreds of economists who have warned about unprecedented damage to the economy.
Sarel said in his essay that economic considerations were secondary to the impact on the government system. With a good or bad reform, the economy would correspondingly benefit or fail, he said.