Nearly a month after Benyamin Netanyahu took office – the most to the right in the whole history of the country –, Israel is the scene of a new outbreak of violence. In the background, a bitter conflict pits the executive power against the Supreme Court. This one has moreover invalidated, on January 18, one of the ministers appointed by Netanyahu.
For years, the Israeli right has accused Supreme Court justices of confiscating the power of lawmakers democratically elected by the people. The same reproaches keep coming back: a small elite would have set itself up as a “government of judges”. It would have arrogated to itself the right to annul ordinary laws passed by the Knesset. Almighty, these judges, strongly marked on the left, would hinder the action of the executive. Their judgments would be purely ideological. And their appointment would fall under an opaque cooptation system.
This narrative takes very well in part of the opinion. He recently received the support of prestigious personalities. Example among others: Israel Aumann, Nobel Prize in Economics in 2005, has just denounced "the activism of the Supreme Court" and its "biased, clearly left-leaning decisions", affirming that the judges "appoint themselves themselves and choose magistrates who think like them" and going so far as to speak of "dictatorship of the judiciary".
Similarly, the American magazine Newsweek criticizes the Israeli "juristocracy" which allegedly arrogated "unprecedented power for a Supreme Court in a Western-style democracy", usurping the power "to strike down any piece of legislation at any time, for any reason that is ".
These accusations justified the initiatives of the new Minister of Justice, Yariv Levin, appointed at the end of December 2022, intended to significantly reduce the prerogatives of the Supreme Court. He plans, with the support of Benyamin Netanyahu, to have the "circumvention clause" adopted, which would allow parliamentarians to vote again after three months on an ordinary law annulled by the Supreme Court, by an unqualified majority of 61 deputies on the 120 in the Knesset. In which case the annulled law would be declared valid. The minister also wishes to influence the appointments of judges, to "put an end to (their) election by their colleagues". A program that would not deny Viktor Orban...
Who appoints the judges?
But are these accusations justified? Nothing is less sure.
Let's start with appointment of judges. It is wrong to say that magistrates “choose themselves”. The 15 judges who make up the Supreme Court are chosen by a commission of nine members chaired by the Minister of Justice: two members of the government, three judges of the Court, including its president, two deputies and two representatives of the Bar Association. .
Irremovable, they retire at the age of 70. The choice of judges depends on the balance of power that is created within this commission. Sometimes he leans on the side of the judges and at other times on the side of the government.
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In February 2017, the Minister of Justice, Ayelet Shaked, succeeded in exerting pressure on the representatives of the bar, to appoint three “conservative” judges from among the four judges to be appointed. In the same vein, Minister Levin only wants to see pro-right judges in the Court.
An exaggerated “constitutional revolution”
Since the birth of the state, the Supreme Court has played a very important role in the defense of rights and freedoms, repeatedly disavowing laws that did not respect the values of equality and justice. From the 1980s, it underwent a major change. The right of referral to the Court has been extended. She extended the scope of her intervention, proclaiming that “everything was justiciable”.
The judges went ahead again, to protect rights not expressly guaranteed, such as the principle of equality, which is not protected by any fundamental law. To circumvent this anomaly, they relied on two fundamental laws voted in 1992, on "Professional freedom" and on "Dignity and freedom of man", interpreting the right to equality as coming under the "dignity of man”.
In 1995, the United Mizrahi Bank stop shook the rules of the game. The Supreme Court initially affirmed that the fundamental laws of 1992 should be considered as supreme texts guaranteed by the judge. This fact was not disputed at the time by the deputies. Once the superiority of these fundamental laws was admitted, the judges recognized the right to review the constitutionality of ordinary laws voted by the Knesset with regard to these fundamental laws. They had intervened in this direction for the first time in 1969 (Bergman judgment), and at the time this decision was not contested.
Is this "unprecedented power for a Supreme Court in a Western-style democracy", as asserted by Newsweek ? Its editorial writer is probably unaware that the Israeli Court was inspired… by the United States. In the stop Marbury vs. Madison of February 24, 1803, the American Supreme Court had decided, in a secondary case, that it alone could rule on the constitutionality of laws and reject those which are not in conformity with the Constitution, although no constitutional text confers this prerogative. For the judge John Marshall, the Constitution being the supreme norm, any act contrary to the Constitution must be declared null and void. The power to review the constitutionality of laws by the Court proceeded, in his view, from the spirit of the American Constitution. This interpretation was adopted by the country, despite the criticism from the President of the United States, Thomas Jefferson, who denounced the "despotism of an oligarchy".
A “government of judges”?
The right regularly criticizes the Court for “abusing” its powers and “preventing the government from governing”. But, in reality, in many cases, the Supreme Court has shown great reluctance. Since the “constitutional revolution” of 1995, it has shown itself to be cautious, aware that an excess of power would turn against it.
It has reduced the number of pure and simple cancellations of ordinary laws, so as to spare, as far as possible, a rebuff to parliamentarians. Most of the time, it maintained a dialogue with them, seeking compromise formulas upstream. Often, when it pronounces an invalidation, it attaches its decision to a grace period in order to allow the government to rectify its law so that it is compatible with the fundamental laws. The government also has the option of asking the Court for a new examination by an enlarged assembly of judges.
On several occasions, the Court ruled in favor of the right in power, while one could expect more firmness on its part. This was the case with the admission commission law, Naqba law, anti-boycott law and deputies suspension law – highly contested laws because of their draconian nature. Early May 2020, she declared herself incompetent to rule on the request to prohibit Binyamin Netanyahu, under triple indictment, from forming a government. In July 2021, she refused to invalidate the fundamental law of the nation-state of the Jewish people, passed in July 2018, a humiliating law for the minorities, in particular Arab and Druze, and which does not mention either the word "democracy" nor that of "equality".
Should we also remember Court erasure faced with the colonization of the territories conquered in June 1967? It avoided commenting on the legality of the settlements, on the grounds that this issue was outside its jurisdiction. She refrained, most of the time, from interfering in security matters, not wanting to risk the accusation of hindering the fight against terrorism. On all issues relating to arrests, deportations, administrative detentions, house arrest of Palestinians and curfews, she refused to interfere with the army. She abstained, except once, from intervening on the question of the demolitions of the houses of the families of terrorists, a measure which nevertheless constitutes a collective punishment, prohibited by the Geneva Conventions.
On the question of the torture practiced by the Israeli Internal Security Service (Shabak), she intervened with infinite caution. With regard to targeted assassinations, it did not dare to prohibit them, it only framed their use. She did, however, show courage in banning (much to the chagrin of the military) the Israeli military's use of "human shields" during arrests of Palestinian suspects. Nothing therefore justifies the frontal attacks carried out by the right, if not the desire to govern without hindrance.
" We are the democracy "
Critics of the Supreme Court often oppose the representativeness of deputies to the elite method of appointing judges. This argument stems from judicial populism. The judicial and legislative organs cannot be placed on the same level. The role of judges is not to represent the people; it is to interpret the law and defend the fundamental rights of citizens against possible abuses of the other two powers.
Right-wing MPs are attached to a narrow version of democracy, according to which “democracy is us”. But democracy is not limited to the electoral procedure. It is also recognized by its checks and balances, its ability to defend the weakest and to enforce the rule of law. All liberal democracies recognize themselves by these criteria.
In France, the United Kingdom and the United States there are several other checks and balances, either in the form of a second chamber or because of the role played by the European Court of Human Rights (ECHR). Israel is not bound by any international convention, and there is no other institution that can counterbalance the power of the Knesset. The only real institutional counter-power is the Supreme Court. Limiting its powers would amount to granting the Knesset the power to legislate without restraint on anything and everything. In the situation of strong polarization which is that of Israeli society today, the circumvention clause would be an instrument of unchallenged domination by the majority over the minority. It would be the end of checks and balances and the beginning of another Israel.
Samy Cohen, Emeritus Research Director (CERI), Sciences Po
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