Attempts to Reform the Israeli Judiciary Aren’t a Threat to Democracy

November 30, 2022 | Ruthie Blum and Gadi Taub
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The platform of Israel’s incoming government will almost certainly include proposals to weaken the immense power of the supreme court. Among them would be a law that would empower the Knesset, with a simple majority, to override the court’s rulings. Last week, the outgoing prime minister Yair Lapid declared that the so-called “override clause,” if implemented, would “crush Israeli democracy,” and various academics and journalists have issued similarly dire warnings. Ruthie Blum, drawing heavily from an open letter (in Hebrew) by Gadi Taub, rebuts these criticisms:

There is no dispute that in Israel there is no structural separation between the legislative and executive branches. This is not unique to Israel; it characterizes the parliamentary system everywhere. Does this mean that separation of powers only prevails in a presidential system? Certainly not. It means that the separation of powers is not hermetic in the parliamentary system, and thus the nature of its checks and balances is also different. But the remedy cannot be the authorization of a court, with no defined limit to its power, to have the final decision-making authority in all matters, when its members are not appointed by elected officials, but rather, in practice, by their peers.

The definition of democracy is, indeed, the “sovereignty of the citizens.” This should be stressed in the face of the misleading discourse adopted by jurists following [the former chief justice, and architect of the court’s radical expansion of its own powers] Aharon Barak, who reduced the expression of this sovereignty—elections—to the rank of “procedure.”

The idea that the will of the people is a fascist monster, and thus needs to have an unchallengeable authority placed over it, is misleading and, in any case, undemocratic. If the people do not want democracy, there will be no democracy. No court will be able to impose democracy—or liberalism (i.e. human rights)—from above, without the sovereignty of the people.

Concentration of power in the hands of the court does not constitute insurance against the danger of the trampling of human rights. . . . In the Dred Scott ruling, the U.S. Supreme Court supported slavery, while the elections that brought Abraham Lincoln to power led to its abolition in a bloody war.

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