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On Monday, the Knesset, Israel’s parliament, enacted a relatively modest law that restricts judicial power. The bill bars the Israeli Supreme Court from overturning national government decisions based on “reasonableness,” a vague and widely criticized common-law doctrine.
On its face, the furious response to that development, which included mass protests, a partial work stoppage by doctors, and threats of a general strike, seems wildly disproportionate. It makes sense only in the context of a broader dispute about the proper role of courts in a democracy, a bitter controversy that echoes U.S. debates about “judicial activism,” with some crucial differences.
The U.S. has a constitution that, by design, is very difficult to amend. It guarantees specified rights; distinguishes between legislative, executive and judicial powers; limits the national government to enumerated powers; and reserves the rest to “the states respectively, or to the people.”
Israel, by contrast, lacks a formal constitution. Its “basic laws,” which specify the structure of government and promise respect for “human dignity and liberty,” were enacted by the Knesset, which can change them at will.
Nor does Israel clearly separate legislative and executive powers: Any coalition of parties that commands a majority in the unicameral Knesset controls the cabinet as well as the legislature. And without federalism, that same majority can impose its will throughout the country.
In this context, judicial review is both more important and more precarious than it is in the United States. At the same time, the legitimacy of that power is open to question when courts go beyond interpreting and applying the law.
As the right-wing legislators in Prime Minister Benjamin Netanyahu’s coalition see it, that is what the Israeli Supreme Court has repeatedly done. The concept of “reasonableness,” which was developed by the courts without a statutory basis, illustrates their point.
According to the Israel Democracy Institute, which opposes the current government’s judicial reform agenda, that test asks not only whether executive policy makers relied on valid legal authority and followed “proper procedure” in reaching a decision. It also asks if “appropriate considerations” were applied, which opens the door to subjective second-guessing of elected officials’ choices.
The Israeli Supreme Court has deployed the “reasonableness” doctrine, for example, to block the appointment of ministers who were accused or convicted of crimes. The IDI also cites judicial decrees regarding day care subsidies, safety precautions in schools threatened by rocket attacks, recognition of “doctoral degrees issued by foreign universities,” and construction of a mikvah (ritual bath) for women in the town of Kfar Vradim.
Daniel Friedmann, a law professor and former justice minister, agrees that the “reasonableness” test gave the Israeli Supreme Court too much discretion. “It enables the court to replace all other authorities,” he told The New York Times before this week’s Knesset vote. “The scope of action should be narrowed.”
But the agenda of Netanyahu’s allies goes far beyond such tweaks. Members of his coalition have proposed changes that would virtually eliminate judicial review, giving a bare majority the power to appoint judges and override court decisions while undermining the influence of advisers who weigh in on the question of whether a proposed law or policy is likely to pass legal muster.
Netanyahu faces corruption charges, a threat that could be eliminated by the proposed reforms, although he denies any such motivation. He also has to worry about maintaining his 64-member coalition’s control of the 120-seat Knesset.
Netanyahu nevertheless has echoed President Isaac Herzog’s warning that the conflict over judicial power raises the threat of civil war. He says a bill allowing the Knesset to negate court decisions is off the table and suggests that consideration of other legislation should be delayed until November.
The prospect of a compromise that would preserve judicial review while curbing its excesses currently seems remote. But it still might be possible if Netanyahu’s allies reflect on the risk that the next election could deliver the government’s newly expanded powers to the opposition.
A well thought out explanation of the basic issue. Thank you, because most of the world has no clue
I believe the people and organizations behind the protests are just using court reform as a pretext to bring people out in the street to overturn the results of Israel’s recent election. What kind of standard is “reasonableness” anyway? Both “free trade” and “tariffs and protectionism” can be “reasonable.” Anyone choosing between them is simply expressing a policy preference and unelected judges who are answerable to nobody should not be imposing their policy preferences pursuant to an amorphous standard (that the Israeli Supreme Court created for itself out of whole cloth in 1997) in a democracy.
They will ultimately fail because in Israel, even more than in the United States, the Left is fundamentally hostile to the state and would either destroy Israel outright (a position that Rashida Tlaib and New York Times’ favorite rent-a-Jew Peter Beinert openly espouse) or they would impose conditions on Israel that would pose an existential threat to its survival. Israel can have social protests and “peace” demonstrations (the latter have never occurred among the Palestinians, and never will), gay pride celebrations in Tel Aviv that draw over 100,000 (unthinkable in any Arab state), none of it matters. To the Left, Israel will always be seen as illegitimate and its very existence as “problematic”.
Correct. Here’s another nugget of information for you: Ehud Barak, a former prime minister who proved useless, has in fact been planning a takeover of the government for the past three years. The current unrest is being largely instigated by him and a few others and he genuinely believes he will overthrow the democratically elected government thus allowing him to return to power. He advocates civil disobedience and a lot more besides. Never mind delusional, this is sedition. The judicial reforms being proposed have in the past been supported by left wing parties. The issue here is the lefts visceral hatred of Netanyahu. Sound familiar?
Yep, and kapo Soros and the great Narcissist Barack Hussein Osama no doubt has a hand in it too, as they do in attempts to subvert the democratic processes in the United States
Yes, I watched the incriminating video where Barak actually said that confrontations between Israeli protesters and police were needed. “The more clashes with the police. the more it will intensify” the effect.
But it got worse.
Barak said he was asked why Israeli protests didn’t have the same results as the 2011 Muslim Brotherhood’s overthrow of Mubarak in Egypt.
It’s bad enough that anyone thought jihadists should be a model for the Israeli Left! But Barak not only didn’t condemn that, he didn’t even act surprised.
He said that the MB coup succeeded because the army was forced to shoot civilians. “The minute there is police violence, even if the police turn out to be justified… it just ignites the protest.”
So don’t be surprised folks, when you see accusations in Israeli media of police violence.
It should also be mentioned that at the moment judges together with the Israeli association of lawyers have a majority vote in the committee that appoints new judges. As the result, most Supreme Court judges are left wing liberals that support the judicial activism approach. The idea beyond the judicial reform is to give the right wing camp the means to balance the composition of the Supreme Court by appointing conservative judges.
They’re a self perpetuating elite. They should be nominated by th Prime Minister, or at least have their nominations reviewed by the Knesset.
Maybe they should have started with changing how the court is chosen. Currently, the Court is essentially self-selecting and self-perpetuating. It thus has no real connection to the people. This is a big problem because there’s not much hope of a more centrist or representative Court that can be more objective and less ideological.
It is hard to defend the current selection process in a democracy that believes in the people having a voice. Reform along these lines should be less controversial and might actually produce more compromise and better results for all the different factions in Israel.
No, it was the “reasonableness” that was the easiest because everyone knows its garbage and agrees that it cant stand. Item #2, about to be debated and voted on, is how judges are chosen–this is more contentious because its how the left maintains control of the judiciary.
The phrase “The “reasonableness” test gave the Israeli Supreme Court too much discretion” is a huge understatement. Translating it from the double-talk means that the Israeli Supreme Court of injustice goes beyond interpreting and applying the law. I.e. the phenomenon, denounced in other nations as “judicial activism”, is a judicial norm in Israel!
Worse, the appointment of such judges and the so-called government “advisers” is under the control of those very judges – the cadres from Davos/WEF/NWO. As a result, Israel is controlled by the globalists aiming to destroy the national identity of Israel just as that of and any other nation! Israel is controlled by the cadres promoting liberasty, tolerasty, pederasty, anti-Zionism, and anti-Judaism.
In these days of the defeat of civilization, belonging to one ethnicity or one people in itself does not guarantee national cohesion, just as no cohesion is possible between the people of North and South Korea. Israel must be split too.
The crisis has been already a long time in the making. Every one knows that everyone (left as well as right parties) wanted reform in the Judicial system. I was only recently used as a convenient but artificial pretext to create disorder and chaos. The only reason for all that is to push progressive, globalist policies forward towards some NWO wanted by a group of diabolic self proclaimed luminaries wanting to play even replace the Almighty on earth!