In May of last year, the President of the Israeli Supreme Court, Esther Hayut, delivered a remarkable speech, declaring that “Israel’s judicial branch is under an unprecedented attack that threatens to irreparably damage its independence”. The main cause for this extraordinary claim was an initiative to curtail the courts’ power to strike down laws that have an adverse, and disproportionate, impact on human rights. Speaking after President Hayut, Justice Minister Ayelet Shaked declared that it is Parliament’s duty to map the mutual relationship between the branches of government.
Not for the first time, the Israeli situation raises a number of interesting questions of general importance, for theoreticians and practitioners.
First, whilst I have zero sympathies with the politics of the Justice Minister, is she wrong to maintain that it is Parliament’s duty to map the relationship between the branches of government? After all, the nature of this relationship is the ultimate political question, in the true, unadulterated sense of the word. These are the questions that troubled Aristotle, Montesquieu and Madison. Why shouldn’t they be the subject of open debate within the most political of branches? Of course, the answer is that this very branch has skin in the game. How can it decide the extent of its own power, vis-à-vis other branches, in a manner that is intellectually honest? That is a fair objection, but it is not the one advanced by judges and their supporters. Indeed, every judiciary in the world owes at least some of its power to Parliament. Parliamentary acts tend to establish the courts, regulate their jurisdiction and determine the terms and conditions of the employment of the judges. So the argument is, to be precise, that a change to the status-quo, which changes the balance of power in a manner that is detrimental to the courts, is inherently threatening to judicial independence. But this is not only misguided. In being misguided, it also serves opponents of the courts with ammunition.
When the British courts were granted power, under the HRA 1998, to declare a law as incompatible with the European Convention of Human Rights, this did not increase their independence, but did give them powers that they didn’t have in the past. In contrast, the Israeli courts currently have far more powers than their British counterparts. So much so, in fact, that the most ‘extreme’ version of the current proposals debated, so extreme that it is not even considered seriously, is to adopt the British model, and allow the courts only to declare the unconstitutionality of a law. This proposal is perceived as a death knell to judicial independence. But does that mean that British courts do not enjoy judicial independence? That obviously is not the case. Similarly, if Israeli courts were to lose their existing powers to strike down laws, they would not lose judicial independence, but rather lose some judicial power.
Viewing it otherwise conflates two important, but separately important, issues.
The danger of conflation is evident, somewhat paradoxically, in President Hayut’s rebuke of the recent initiatives. In responding to the claim that the court is too powerful, she indicated that since 1992, the American Supreme Court voided 50 federal laws, while the Israeli court reached the same decision only on 18 occasions, making it one of the least ‘activist’ courts in the world. To paraphrase the President’s argument, perhaps unfairly, she is saying: we’re playing nice, so why are you picking on us? Even more unfairly, one may even find a normative element in her argument: if we promise to continue to ‘respect’ the decisions made by other branches of government, will you preserve our ‘judicial independence’? This is a dangerous path to follow. It is also somewhat paradoxical: for if the court has voided only 18 laws in 27 years, five of which involved two issues which reached the court on different occasions, why is it so important to maintain that power and, moreover, to leverage the threat to judicial independence in the process?
The reason that this is a dangerous path to follow is because judicial independence isimportant, and is particularly important in a country like Israel. There is a reason that this initiative has reached its current height (or depth) following Supreme Court decisions to strike down laws, on three separate occasions, that allowed the administrative detention of asylum seekers (‘infiltrators’, in Israeli government parlance) for three years, in the original version, and up to one year, in the watered down version.
As is the case elsewhere, there are few constituencies with less political backing than asylum seekers and refugees. Therefore, targeting the court for protecting their interests carries, relatively, few political risks. Thus, it may be unsurprising that, following these decisions, a coalition of nationalist forces started to develop, to limit the court’s ability to safeguard the rights of asylum seekers. Realising that such a targeted approach may be politically feasible but legally difficult, this coalition broadened its ambition by introducing, as recently as November 2018, an amendment to the Basic Law: Human Dignity and Freedom, limiting the courts’ ability to hold a law as unconstitutional, through a variety of ‘override clause’ versions. In addition, they managed to make the appointment process of judges to the Supreme Court a highly political affair, by reducing the power of judges in the committee and by forcing through the appointment of a first, and recently – a second, judge who live in a settlement in the Occupied Palestinian Territories.
These factions, who are advocating reform, care very little about high minded matters of separation of powers. They are not bothered, and are probably not aware, of the cases that concern property rights, social security or taxation in which the court has struck down primary legislation. They want to send the court a very low-minded political message: if you want to preserve your powers, you need to align by our nationalist agenda. In a recent visit to Israel, Justice Rosalie Abella Silberman, of the Canadian Supreme Court, addressed this very issue, and hit the nail on the head, saying that:
Independent judges who are not politically compliant are not anti-democratic, they are doing their job; those critics, on the other hand, who think patriotism means doing only what politicians want, are the biggest threat to Israel’s values, because they misconceive democracy as majoritarian rule.
Indeed. This is the issue. The powers of the court are numerous. Its administrative reach, which includes an overview of home office regulations, security measures, health and education guidances and a variety of government dictates, are far more important and effective in Israel’s daily struggle to maintain what is left of a core of democratic and constitutional values. True judicial independence, in other words, lies in the freedom to uphold the rule of law against forces that are growing in power, from one generation to the next. Forces that wish to obliterate minority rights and would regard the tyranny of the majority as a constitutional value.
A country that is steeped in an ongoing national and ethnic conflict since its existence, and for over 50 years – in prolonged occupation – has an uphill battle to uphold and maintain respect for human rights, particularly for Palestinian citizens and non-citizens, but also for others. Those constituencies depend on judicial independence to stand guard against calls that seek to portray them as ‘power grabbing’, ‘authoritarian’ and, indeed, enemies of the people.
If the court is dragged into the political theatre, forced to fight for its own limited power to strike down laws by leveraging the argument of judicial independence, it will lose the battle for its powers; but more importantly, it will lose the war for its own independence.