An outsider could be excused for concluding that the judicial review of legislative and executive actions is something of a national sport in the United States. The American system of checks and balances is so ingrained that one hardly takes note of the superstructure that creates perpetual friction among the executive, legislative and judicial branches of government.
The pitting of one branch against the other is no accident, it is part of the Founding Fathers’ design. Few in America would seek to tear down this structure, despite the constant dissension it entails.
The current governmental crises in Israel pits the government’s proposals to both curtail the powers of the judiciary and to extend executive control over judicial appointments against those who say, “An Elective Despotism was not the government we fought for,” in the words quoted by James Madison in Federalist No. 48. The protesters realize that the government’s proposals eliminate an essential check and balance in Israel, creating a system where such despotism is not only possible but a probable outcome of the executive’s power over the judiciary.
The history of Israeli judicial independence
Under Israel’s unicameral electoral system, the legislature has become a shrunken appendage of the executive. Voting in Israel is limited solely to a single ballot cast for a political party, not an individual. Not one member of the Knesset, not even the prime minister, is directly elected by the voters.
Of the 64 members comprising the government’s ruling coalition in the Knesset, almost half (31 at last count) were appointed to Israel’s cabinet – perhaps the largest and most bloated cabinet of any Western democracy. The cabinet, therefore, is a mini-parliament and its decisions effectively control the legislature.
With Israel’s lack of strong legislative oversight to check the powers of the executive branch, the courts represent the only other independent branch. Since Israel also has no constitution and no well-developed system of administrative courts, only Israel’s Supreme Court, with the exception of the District Court which in 2000 was granted administrative authority in a limited number of cases, has any authority to act as a check on executive malfeasance and legislative overreach.
When Israel was formed in 1948, the first judges were, in fact, appointed by the government. Israel already has experience with the politicization that this created and it was not pretty. As a result and despite the government having a firm majority, there was consensus that a truly independent judiciary was essential.
Following a review of US, British and continental systems, legislation was passed to establish a special appointment committee to make judicial appointments with political representation but not political control. Then-justice minister Pinchas Rozen, in presenting his proposal to the Knesset in 1953, said that “if this [proposal] doesn’t secure the independence of the judiciary, I don’t know what will.”
Thus was born Israel’s method for checks and balances which in the absence of a written constitution has served the country for the last 70 years. It may lack Madisonian sophistication but maintaining the independence of Israel’s judiciary has led to a corpus of legal precedents that have placed Israel at the forefront of the world’s democracies in, among other things, ensuring that government respects the rule of law, reducing corruption, creating a level playing field for business, protecting minorities including Arabs and, yes, protecting the rights of all Jews in Israel.
Israel’s current political leadership in its hostility to what it perceives as too liberal a court is attempting to increase its power by eliminating the perpetual tension inherent in this democratic balancing act. While it is only natural that the executive authority is resentful of judicial limits to its power, the proposed legislation rather than fine-tuning the system aims to cripple the judiciary. If enacted, these proposals would leave Israel open to the threat of the elective despotism and tyranny of the majority that Madison and the other Founding Fathers so strived to avoid.
More and more, Israelis are seeing this naked power grab for what it is. Israel’s leadership would do well to abandon this effort and follow the example of former prime minister Menachem Begin, a staunch defender of the Supreme Court even when he disagreed with its rulings.
“If anyone would ever say that the settlement of Jews in the Land of Israel is illegal, my response is there are judges in Jerusalem.”
Menachem Begin
He famously said, “If anyone would ever say that the settlement of Jews in the Land of Israel is illegal, my response is there are judges in Jerusalem.” May that forever be the case.
The writer is vice chairman of the board of the Movement for Quality Government in Israel.