Israel appears plagued by conflict between its three branches of government: the executive, the Knesset and the judges. Each accuses the other of exceeding its powers. Both government ministers and the Knesset claim that the Supreme Court has been acting politically, and not judicially.
Israel is hardly alone in facing this problem. Other democracies have to face it too. Indeed, in a well-functioning democracy, there is an inevitable tension between the three branches. That is particularly true of the relationship between government and the judges.
Haaretz podcast: Trump-loving Israelis brace for a Biden bombshell
In Britain, a former Lord Chief Justice, Lord Bingham, regarded by many as the greatest British judge since the war, once said that there are certainly countries where the judges always agree with the government. But they are not countries in which any of us would want to live.
In Britain in 2017, Appeal Court judges decided against the government. They declared that Article 50, putting into effect the referendum providing for Britain’s departure from the European Union, needed to be confirmed by a parliamentary vote.
One newspaper responded by dubbing the judges “enemies of the people.” The former President of the Supreme Court of Israel, Aharon Barak, told a recent Israel Democracy Institute conference that he too has been dubbed an enemy of the people for articulating judgments that the government did not like. Perhaps being an “enemy of the people” is a badge of honor!
Democracy is rule by the majority. But that does not mean that the majority has the right to do whatever it likes. It does not have the right, for example, to tyrannize over minorities, nor to alter electoral arrangements in its favor.
In Hungary, for example, there are broadly free elections, but these are accompanied by intimidation of opponents and hostility to minorities, including Jews and Roma. Critics are frightened to speak out and there are restrictions on the media. That is why President Macron of France has called Viktor Orban’s Hungary an “illiberal democracy.”
- Another assault on the High Court
- Netanyahu's lawyers to tell court they lack investigative material
- Right-wing activists attacked us at Israel's Supreme Court
Who, then, can ensure that the majority does not abuse its power? Only the judges.
Judges must not, of course, second guess political decisions. That was the mistake made by the United States Supreme Court in the 1930s when it tried to block Franklin Roosevelt’s New Deal legislation because it did not agree with his economic philosophy. But economic philosophy is a matter for the voters not the judges.
Arguably, an issue such as the privatization of prisons in Israel should have remained solely a matter for government and the Knesset, which passed a law allowing them in 2004, not the judges, who struck down the law in 2009, calling them an unconstitutional violation of basic human rights, provided that prisoners’ rights would indeed be respected by private operators.
The task of the judges is not to second guess political decisions, but to ensure that political and electoral processes remain fair and that the rights of minorities are respected. This benefits all of us, not just minorities.
For, as the Irish jurist, Conor Gearty has said, “None of us has a guaranteed space among the fortunate -- And rich and fortunate though we might seem, these are not guaranteed conditions: we will grow old, we may be visited unexpectedly by the police, an onset of mental ill-health may leave us vulnerable; our lives may change suddenly for the worst.”
The tendency of governments everywhere to forget about, ignore or even deliberately downgrade the rights of minorities means that the relationship between government and the judges is bound to be tense. That is a sign not of the malfunctioning of democracy but of its health.
Most democracies, including the United States, Canada and the member states of the European Union, place judges under a duty to strike down legislation that conflicts with human rights. It is clear, therefore, that the judicial review of legislation is in no sense anti-democratic. Indeed, although Israel has had judicial review over legislation since 1995, protecting human rights is left largely to the legislators, as it is in Britain.
But are legislators in Israel and the UK so much more sensitive to human rights than the legislators of, for example, the United States, Canada or Germany, that they should be given the last word on these questions?
The role of judges is of particular importance in a society such as Israel where it is no longer clear that such concepts as “majority” and “minority” are wholly relevant.
As President Reuven Rivlin declared in his Herzliya speech in 2015, in the Israel of the 1990s there was a large secular Zionist majority and three minorities – national/religious, Arab and Haredi. But today, so he argued, there is no clear majority group at all, but four “tribes”, each of which must be given its due share of power and influence if Israel is to be successful. Israel must transform itself, therefore, from a majoritarian democracy into a partnership between its tribes.
Of course there can only be one judicial system, but it must take full account of the needs and sensitivities of each of the tribes. But what is also needed is a political system that takes full account of the existence of those four tribes.
Perhaps Israel has something to learn from countries like Belgium and Switzerland, which have been able to share power between different groups, none of which enjoys a majority – the “consociational” model.
There are of course already elements of a consociational model in Israel with the status quo agreement and the autonomy of different Jewish groups in education. But the transformation of Israel into a fully consociational democracy would be a long-term project which would involve a radical rethinking of Israel’s parliamentary system.
Meanwhile, however, it is clear that the only umpires in a system of four tribes must be the judges. Far from being enemies of democracy, therefore, the judges are essential to its success.
Vernon Bogdanor is Professor of Government at King’s College London and a member of the International Advisory Council of the Israel Democracy Institute. His most recent book is `Britain and Europe in Troubled Times’ (Yale University Press)