Earlier this month, the Supreme Court issued a ruling that was guaranteed to incense many Israelis. Lamenting that the state had left it no choice, the tribunal – sitting as the High Court of Justice – instructed the Interior Ministry to register as citizens a group of petitioners who had undergone non-Orthodox conversions to Judaism in Israel.
The heads of the religious political parties and the Chief Rabbinate, who do not recognize the Reform and Conservative streams as Jewish, responded with fury, which they directed at the court. They threatened that, after the election, they would not join any coalition that did not commit to passing a long-discussed “override clause,” which would make it easier for the Knesset to circumvent court rulings that had struck down legislation that the justices deemed as violating one of Israel’s Basic Laws.
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Large sections of the political right bemoan what they see as the court’s judicial activism, which, ever since the Knesset’s passage of the Basic Law on Human Dignity and Liberty in 1992, has assumed for itself the power to strike down new statutes it sees as infringing it or other Basic Laws.
On average, it has done that less than once a year. But because the rulings often involve controversial topics – such as refugee rights, religious freedom, and the question of the blanket exemption from military draft enjoyed by the ultra-Orthodox community – they can draw a lot of fire.
Combined with Prime Minister Benjamin Netanyahu’s ongoing attempts to convince the public that the police, the attorney general and the state prosecutor have all conspired to fit him up with false criminal charges, these days the entire law-enforcement and judicial system is seen by many as biased and not to be trusted.
In fact, the March 1 decision by the High Court did not strike down any statute, and instead it invited the Knesset to rewrite the existing law concerning non-Orthodox conversions, so as to remove the lacuna that brought about the case in the first place.
The majority opinion, written by Supreme Court President Esther Hayut, details how, over a 15-year period, the respondent – that is, the state – had requested time and again a delay in the proceedings while efforts were underway to come up with a compromise or, alternately, while the Knesset wrote a statute that would address this gap in the law. The 37-page decision was at pains to make clear that the court was interpreting the Law of Return, not offering an opinion on what makes a conversion legitimate.
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The reactions of some politicians, including a video aired just a few hours later by the United Torah Judaism party of a dog undergoing a “bark mitzvah” in the U.S., and declaring that “In the High Court of Justice, this is a Jew,” could have been anticipated – especially in light of the fact that the ruling on such a fraught issue was being issued on the eve of the March 23 election.
Several of the right-wing parties have explicitly said they will condition their participation in a new government on its committing itself to getting an override clause through the Knesset. One of those parties, Religious Zionism, led by MK Bezalel Smotrich, posted a clever ad online this week that, at first glance, looked like it could be from the left-wing party Meretz. In fact, next to a photo of Smotrich, it proclaims: “Vote for Meretz,” followed, in smaller font by “or Likud, or Shas, or Labor, or the Pirates. It doesn’t matter. The High Court will decide in the end.”
So, the proposed override clause is once more in the headlines, even if, as jurist Dr. Amir Fuchs told Haaretz, “You don’t need an override clause in order to overcome this ruling.” All that’s required, the senior researcher at the Israel Democracy Institute explained, is for the Knesset to write a law that says “conversion has to be via Orthodox authorities and in accord with halakha [Jewish religious law]. If you ask me whether such a law would pass judicial review – I think the answer is yes.”
As far as Fuchs is concerned, the failure of either the government or the legislature to act on this sensitive matter “is just an effort to avoid responsibility – in part, I assume, because of the fear of the criticism there would be” among Conservative and Reform Jews in the United States.
In a way, it’s easier to blame the Supreme Court, which has come to represent much of what many right-wing Israeli Jews think is wrong with society. Israel is not the only country whose highest court has been under assault; it is a phenomenon common to many of the world’s democracies where populism is in the ascendent.
As Prof. Stephen Gardbaum, from the law faculty at the University of California, Los Angeles, told Haaretz: “The movement against the courts is part of a trend. Having a really independent court is a check on the consolidation of power by governments. So, there’s a natural tendency by governments in general to be constrained by independent courts.” But more about that later.
New culture war
In Israel, animus for the court goes back a number of decades – to the period when Aharon Barak held key roles at the pinnacle of the country’s legal system. Before he joined the Supreme Court in 1978, Barak was attorney general for three years. He served on the court until 2006, for the last 11 years as its president (chief justice).
Even Barak’s fiercest critics acknowledge his brilliance and charisma. So, it could have been predicted that when the Knesset passed two new Basic Laws in 1992 – on Human Dignity and Liberty, and on Freedom of Occupation – which were meant to serve as a quasi-Bill of Rights for Israel, Barak took the opportunity and redefined the High Court as the equivalent of a constitutional court.
Israel famously lacks a written constitution, but according to the 1950 Harari resolution, the Basic Laws, which laid down the structure and principles that would guide the executive, legislative and judicial branches (and other major public institutions), were to serve as the foundation for the creation of a future constitution.
That would be “one day in the future,” said Prof. Menachem Mautner, former dean of Tel Aviv University law faculty and a frequent commentator on constitutional issues. “But the Basic Laws were not meant [themselves] to be the constitution of the state,” he added, noting he is certain of that because he read all the protocols of the Knesset “leading to the enactment of the Basic Law on Human Dignity and Liberty. At least 10 times the lawmakers say, ‘We are not enacting a constitution now.”
Yet in the introduction to his opinion in a 1995 case, Barak wrote how Israel had “now joined the community of democratic states (the U.S.A., Canada, Germany, Italy, South Africa, and others) that have constitutional bills of rights.”
According to Mautner, Barak bears responsibility for escalating a Jewish “culture war” that had begun two centuries earlier with the Jewish Enlightenment. That 18th-century intellectual revolution “was really the turning point in modern Jewish history, the first time there was an intellectual campaign that offered the Jews an alternative way of life, one that combined the traditional Orthodox life with the best of European enlightenment,” he said.
The confrontation between liberal and traditional values had been simmering away ever since, but Mautner believes Barak returned it to a rolling boil. Under Barak’s leadership, “The court positioned itself at the very front of the culture war, and became explicitly and vehemently a liberal agent,” he added.
Mautner sees that as a mixed bag. “It was the first time the Knesset gave the court permission to strike down laws of the Knesset if the court deems them to contradict provisions of the Basic Laws. This is a great historic development.
“The second thing that begins to happen is that the court itself began to write the constitution of the State of Israel. It began to fill up the term ‘human dignity,’” which is the essence of the eponymous Basic Law, “and the court began to explicate what that meant.”
Still, according to Prof. Eli Salzberger, the High Court did not suddenly become an activist court. In fact, the former dean of law faculty at the University of Haifa said, “What changed in the constitutional revolution was the rhetoric of the court, and not the degree of activist decision-making. The old court of the 1950s and ’60s departed from the British precedent into a very dominating court, and so I think this should be noted in the historical background.”
In Salzberger’s opinion, “It’s not the court or its ideology that have changed since its establishment. Unfortunately, however, the sentiments of the Israeli public, which is reflected by the political establishment, did change significantly – from liberal in concept to nationalist and populist.”
He added: “Fifty years of being an occupier also makes its mark on people who were born into this situation. So, there’s a gap between the court and the public, and it’s almost a miracle that we still manage to have such impressive legal institutions, and that these things didn’t happen before.”
Avi Bell sees things a little differently. A professor of law at both Bar-Ilan University and the University of San Diego, Bell is also a senior fellow at the Kohelet Forum, the conservative and libertarian Jerusalem think tank that has provided a lot of the theoretical and legal research behind the controversial nation-state law, on the one hand, and last year’s U.S. declaration that it recognizes the legality of the settlements.
Prof. Bell sees the threat to Israel’s democracy as coming from legal and judicial institutions that have grossly overreached their authority.
“We had a not-bad system before [Aharon] Barak,” he said. “There was an activist court, but it operated within certain bounds. It didn’t purport to have the ability to override legislation. It had respect for independent decision-making powers of the executive branch, and a reluctance to enter into highly politicized issues. It was an activist court, and it made big decisions on free speech and religious liberty and the like. But they were few and far between, because otherwise it would put them at the center of political debate.”
Today, Bell said, “There is a loss of trust in the judicial institutions,” referring to not just the Supreme Court but also the offices of the attorney general and the state prosecution.
Bell rejected the idea that the decline in trust might have been given a nudge by the constant attacks on the legal system’s integrity by Netanyahu, who is on trial on a variety of what he says are trumped-up corruption charges.
“I don’t think that lines up with the facts,” he said. “The erosion in trust has been happening over time, and it’s fairly steady. In most recent years, there’s a sharper drop-off in trust in law enforcement authorities, and I would connect it with what the authorities are saying in their own name. This is the first time we have a sitting prime minister being tried on criminal charges. It’s difficult for people not to see the politics of it – particularly when the attorney general is holding press conferences to explain his position.”
As for the Supreme Court, Bell claimed it is inconsistent and has been unwilling to acknowledge clear limits to its authority. And it offers two sets of contradictory explanations as the basis for its actions: “On the one hand, the court says that judicial review of legislation is justified by the supremacy of Basic Laws over other legislation. On the other hand, the court says that unwritten principles justify judicial review of legislation, such that the court can nullify Basic Laws and other legislation alike.”
To Amir Fuchs, the Israeli system is lopsided in favor of the executive branch, and the Supreme Court is the only thing standing in its way, checking its power. And if an override clause is adopted by the Knesset, “it will change a lot.”
“Today, if the court strikes down a law, as happened several times with the infiltrators law, and with the army draft law, the Knesset and the government generally accept it [the ruling]. Now, there will be an option for them not to accept it,” Fuchs said.
If the proposal that was first pushed by then-Justice Minister Ayelet Shaked in 2014 becomes law, any decision by the Supreme Court could be overridden by a simple majority of 61 lawmakers in the Knesset. “That’s a majority that any coalition can recruit if it’s really something important,” Fuchs said. “And that would mean that a ruling of the Supreme Court would really just have the authority of a recommendation. If you ask me, that would turn Israel into what is only a ‘formal’ democracy – one that holds elections, but in which, beyond that, no right is protected. In which the majority can pass any law that it wants.”
He continued: “Now, there are a lot of people who will say, ‘That’s what democracy is; democracy is majority rule. And if you ask me, that’s where this entire discussion has its origins. Anyone who believes that democracy is more than just majority rule, and that alone, understands that you need limits on the power of the majority.”
Stephen Gardbaum’s field of expertise is comparative constitutional law, which makes the UCLA professor a fitting person to put Israel’s situation in a global context. He noted that, internationally, “the movement against the courts is part of a trend.” Governments in such countries as Hungary, Poland, Turkey and the Philippines “all want to consolidate their power, and having a really independent court is a check on the consolidation of power by governments,” he said.
“This type of politics is happening in many places, because courts, as long as they retain their full independence, are a break on what majorities think they were elected to do. So, it happens everywhere.”
But Gardbaum cautioned against bracketing Israel with countries like Hungary, Poland, Turkey and Venezuela, which “are just no longer full democracies.” He doesn’t see Israel facing a similar threat, though he admits, “Maybe I’m too optimistic.”
In any case, Gardbaum said, to some extent, the worldwide backlash against the courts has a cyclical aspect to it. During the ’90s, he noted, the fall of the communist bloc and the rise of American influence “resulted in a huge transfer of political power to the courts.” And the more powerful the courts in a country, the stronger the pushback has tended to be, he added.
In Hungary, for example, “it was Viktor Orbán who was prime minister in the late 1990s, who was subject to this very robust court, and he didn’t forget it. So, that was his first target when he got back in power with a super-majority,” Gardbaum explained.
No magic wand
Rivka Weill has written extensively on Israel’s High Court and on the controversies that swirl around it. A professor of law at the Radzyner Law School at the Interdisciplinary Center, Herzliya, Weill suggested that the discussion about the override clause can miss a larger point: “The override isn’t a magic wand,” she said. “There are inherent, built-in limits to what you can do with the override.”
Although she notes that the High Court still has to rule on this point, in her opinion, if the Knesset wants to rewrite a Basic Law, “it needs to go through the process of amendment” –which is to say, it has to write a new Basic Law. That goes beyond what is possible in an override. “It’s not such a big deal,” she said, “but the political price is steeper.”
However, Weill is convinced that even constitutional amendments probably have their limits. “These have to do with the most basic fundamental values of Israel as a Jewish and democratic state,” she said. “You can’t do that even via an amendment. I suspect that the court would declare that this is impossible to do. And if there are limits to what you can do with an amendment, there are definitely limits to what you can do with an override.”
As an example, Weill pointed to a theoretical, but much-discussed, amendment that would retroactively give immunity to Netanyahu from criminal prosecution while he’s in power. Such a law would definitely come before the High Court for review, and she thinks it’s unlikely it would pass muster.
In any event, Weill said she believes people tend to overestimate the power of the court, which doesn’t operate in a vacuum.
“The court is a player, and it makes its moves within a context. There’s a dance going on between different political players, and the court is just one of the players. It’s a never-ending conversation.”