There is no one right way of ensuring that the powers of unelected bodies such as the courts and the powers of elected bodies such as the Knesset are held in optimum balance
March 28, 2023 16:45
The Israeli government’s proposals to reset the constitutional balance of power between the judiciary and the country’s parliamentary government are attracting worldwide attention. Lawyers, in particular, are aghast. The Prime Minister, Benjamin Netanyahu, is frequently compared with other right-wing populist leaders, such as Hungary’s Viktor Orban or Turkey’s Recep Erdogan. Such figures are routinely condemned for their assaults on the rule of law, on the independence of the judiciary, and on the checks and balances which are the hallmark of a democratic constitution. This is dangerous company for Israel to be keeping.
Are such comparisons fair? Placing the Israeli government’s proposals alongside Erdogan’s Turkish regime manifestly is not. Thousands of judges, opposition leaders, human rights activists and others have been wrongly imprisoned, prosecuted, hounded, and persecuted in Turkey. Nothing even remotely comparable is happening in Israel.
Comparing Mr Netanyahu’s proposals with Hungary may be more instructive — although not in the manner contemplated by the Prime Minister’s critics. For Hungary is a Member State of the European Union (as is Poland, another European country with a long track record of constitutional reforms designed to weaken, if not to undermine, the rule of law).
The European Union is formally committed to the rule of law as one of its founding principles. It is a condition of EU membership that a state must likewise commit to the rule of law. And yet, even within this structure, governments may push back — and push back forcefully — against what they perceive to be the over-weaning powers of unelected and unrepresentative judges. This is not to endorse government policy in Hungary or Poland — far from it. It is merely to note that such policy is executed within both national and supranational frameworks which are at least ostensibly committed to the rule of law.
Israel is a parliamentary democracy, with a partially written constitution, a common law tradition and a Supreme Court which has relatively recently taken on the role of enforcing constitutional rights. In these respects it is very similar to Canada and identical to the United Kingdom. Moreover, these three jurisdictions are very close with one another. When Aharon Barak was Chief Justice, the way he moved his court to embrace and to rely on the all-important doctrine of proportionality was derived explicitly from Canadian law (Barak spent many years as a visiting law professor at Toronto) and, in turn, his jurisprudence influenced the UK Supreme Court. Justices from the Supreme Courts of Canada, the UK and Israel know each other personally, and meet to discuss issues in common.
All three countries have seen their courts move policy in a more liberal direction. All three have likewise witnessed political pushback against this. In the UK the principal instrument under which the Supreme Court has moved policy in a more liberal direction is the Human Rights Act, passed by the Westminster Parliament in 1998. The current UK government has published a Bill, now before the House of Commons, which, if enacted, would repeal the Human Rights Act and replace it with a new Bill of Rights. The new Bill of Rights would curtail several of the powers the UK judiciary currently enjoy under the Human Rights Act. The Bill is a means by which the forces of parliamentary government can “take back control” over human rights from the UK Supreme Court. Unsurprisingly, most lawyers in the UK are highly critical of the Bill. It seems, of late, to have fallen down the Government’s agenda somewhat, and few now expect it to be enacted before the next UK general election.
But the point is this: it is not only in Israel where government and parliament are so concerned about the shift of constitutional power away from the elected parts of the constitution to unelected judges that they propose radical legislative measures to reset the balance.
So how should such measures be assessed? The idea, often repeated, that what is at stake here is Israeli democracy itself is obviously preposterous. Democracy does not come from the court room, or from judicial review, but from the ballot box. As in Westminster, so too in the Knesset, no government may hold office unless it enjoys the confidence of the legislature—and that legislature is, of course, directly elected.
However, democracy alone cannot secure constitutional government. Ever since Madison and Hamilton penned the Federalist Papers (in 1780s America) we have known that democracy, essential as it is, must be checked and balanced by other powers in the constitution. In the UK the House of Commons is checked by the (unelected) House of Lords. Government decisions may be quashed by the courts if they are unlawful, and legislation may be reviewed (but not quashed) to check its compatibility with human rights.
In Israel, the primary check comes from the ballot box. The electoral system used for elections to the Knesset means that majority government is unheard of and that government of any type is so difficult to hold together that few administrations see out their full terms. On one view, the problem in Israel is not that there is too little democracy but that there is too much—voter fatigue is a real risk in a country that goes to the polls so often.
The disciplining of the ballot box, essential though it is, is unlikely of itself to guarantee a government committed to the values of constitutionalism and the rule of law. But the truth is that there is no one right way of ensuring that the powers of unelected bodies such as the courts and the powers of elected bodies such as the Knesset are held in optimum balance. The Americans have been arguing about this ever since Madison picked up his pen. The Brits have been arguing about it since long before the Human Rights Act. Israel’s recent—and ongoing—experiences are not a sign that the country is divorcing itself from its democratic roots. They are, on the contrary, a sign that just as in Canada and the UK, democrats in Israel must argue and contend with one another about where the powers of parliamentary government end, and where the powers of the courts start. Long may the debate continue.
Adam Tomkins is Professor of Public Law at the University of Glasgow
