SA community expresses opposition to Israeli judicial reform

The heated debate on Israel’s judicial reform played out at the South African Zionist Federation’s webinar, “Courting controversy: the debate on Israel’s judicial reforms” on 9 March 2023.

But our community made its feelings plain in an online poll during the debate, in which only 8% of viewers supported the controversial judicial reforms, 72% opposed them, and 20% were undecided.

The debate between Ran Bar-Yoshafat and Professor Yuval Shany, moderated by political commentator Jamie Mighti, was over Israel’s new far-right-wing government and its supporters who are pushing hard to have the Knesset enact a raft of judicial reforms before its Pesach break in early April.

The ruling coalition maintains that the Israeli Supreme Court is too liberal, overreaches its mandate, and interferes too much in government business. The prospect of these reforms has sparked huge (mostly peaceful) protests across Israel.

Analyst Rolene Marks set the scene, calling these protests “one of the biggest issues for Israel outside of a wartime scenario, and one of the most important since the [1993] Oslo Accords. There’s a real worry, a fear for the future of Israeli democracy. It’s a lot more complicated than the losers not accepting election results.” She remarked on the diversity of those protesting outside the justice minister’s house every Saturday night. “Protesters feel that the government isn’t listening. The Israeli public isn’t going to take these overhauls lying down. Media coverage tends to be loaded, and it’s difficult to be impartial,” she said.

Ex-South African David Benjamin, who served as a legal advisor to the Israeli Defense Forces from 1989 to 2009, explained what was at stake from a legal perspective. He said democracies depend on majority rule but need effective checks and balances to prevent “the tyranny of the majority”. Israel lacks a written Constitution but does have what are termed “Basic Laws” dealing with issues like human dignity and the freedom of individuals. Citizens are allowed to take government decisions to the Israeli Supreme Court (acting as the High Court of Justice) for judicial review. The court may strike down a decision after determining its “reasonableness”.

Benjamin outlined the current slate of six proposed judicial reforms. First, it’s about how judges are selected for the bench, with a proposition to give the ruling coalition the ultimate say in these appointments. Second, the reforms want a threshold of 12 of the 15 Supreme Court justices for a judicial revision to overrule a law. Third, if at least 12 justices do decide to overturn a law (apart from Basic Laws), the proposal would allow the Knesset to reverse this if just 61 of 120 Members of the Knesset agree. Fourth, by preventing a judicial overrule on Basic Laws, the legislators could then just make any law a Basic Law by inserting the words “Basic Law” into the legislation. Fifth, the reformers want to do away with the reasonableness test. Finally, they want to change the system of all legal advisors being subordinate to the attorney-general, making these positions of loyalty to the government ministers who appoint them.

Bar-Yoshafat is deputy director of the Kohelet Policy Forum, a conservative Israeli think tank. He’s a proponent of the judicial reforms, and said that even though he disagreed with the protesters, they were “patriotic”.

Bar-Yoshafat said to calm down the tense atmosphere in the country, the pace of the reforms should be slowed down, “The right-wing for 40 years have won elections, but have been unable to push policy forward,” he said. “Who should have the final word on laws? I disagree that it should be the judges. People ask, ‘Why now?’ We say we have been waiting 15 years for this. The will of the people must prevail. The right is a hunted majority that can’t express itself.”

Shany, the deputy president of the Israel Democracy Institute, outlined what’s at stake in this ideological clash. “The proposed reforms give a very narrow vision of democracy, revolving almost all around majority rule. A court in a democracy is meant to uphold the law, protect human rights, and minority rights. It’s there to challenge bad laws and strike down legislation that violates these rights.”

He said the problem in Israel is it that it has insufficient institutional safeguards or checks and balances essential to democracy besides regular elections and the Supreme Court. It lacks a Constitution, a presidential veto, a second house of parliament, or appeal to a regional court as many other states have. “This is an all-out blitz to dismantle judicial and legal protections,” Shany said. “The reforms would alter the system to allow the government to interpret the laws itself, and make changes at its whim. We see the same process of deterioration of democracy in Hungary, Poland, Russia, and Turkey.”

Shany said the Israeli left was also dissatisfied with the Supreme Court, for example, on settlement policy in Judea and Samaria (the West Bank). Calling it an extreme, leftist liberal organisation is “very exaggerated”, he said. It has become much more conservative over the past 20 years. “This push for judicial reforms is completely wrong-headed. It has left a large chunk of Israeli society opposed to it and determined to resist it with all its force. These reforms would damage the economy and Israel’s international reputation and status.”

Tampering with the judiciary is all the more questionable, as Prime Minister Benjamin Netanyahu himself faces fraud and breach-of-trust charges. The “Deri Law” – named after Shas Chairperson Aryeh Deri, who was ejected from the Knesset by the court because of a previous conviction – seeks to block the High Court from intervening in the appointment of ministers.

According to Shany, “When a government feels at ease to appoint a corrupt minister for obvious political reasons, the court must move into the fray in the absence of other checks and balances to protect the public interest.”

Bar-Yoshafat said he hoped a compromise could be found soon.