The Knesset’s passage of legislation on Monday to curtail the authority of Israel’s Supreme Court marks a new era for the state of Israel. The legal implications of the law are substantial, as will be the economic, diplomatic, and security damage to the country. But, critics assert, Prime Minister Benjamin Netanyahu’s single-minded determination to get the legislation through parliament ever since he returned to office has ruptured Israeli society itself. The government’s so-called ‘administrative review’ of the apex court’s authority to overturn decisions taken by the executive and limiting the ability of the Supreme Court to set aside acts it deems “unreasonable” has resulted in legislation which marks a watershed moment for not just Israel but democracies across the world where executive-judiciary clashes have vitiated the atmosphere and impacted both justice delivery and governance.
The reasonableness doctrine, as Amichai Cohen and Yuval Shani of the Israel Democracy Institute have written, provided grounds for striking down a decision where the court found a conflict of interest, a procedural impropriety, or an act that exceeded the government’s legal authority. The Supreme Court could also rule on substantive grounds, if it found that the government had acted in a discriminatory manner, taken into account irrelevant considerations, or adopted “patently unreasonable” decisions. That is now apparently history. Leading commentators are aghast at the consequences of the legislation. Natan Sachs writes that the law places Israel on the brink of disaster as a country and what it stands for, asserting that Mr Netanyahu’s judicial overhaul mistakes majoritarianism for democracy. Mr Netanyahu’s betrayal of democracy is a betrayal of Israel, says Yossi Klein Halevi. Not only does the new legislation upend decency and reason, he predicts that the country’s friends abroad will be increasingly uncomfortable with backing Tel Aviv as it exhibits clear signs of democratic backsliding. That the Supreme Court can no longer strike down patently unreasonable decisions of the executive which run contrary to human rights or good governance in effect eliminates the legal doctrine of reasonableness. It is a scary situation. But with a parliamentary imprimatur in place, the Netanyahu administration argues the new law represents the will of the sovereign, the citizens of Israel, and is a deathblow to alleged judicial overreach as well as political-ideological bias. Unfortunately, that is an argument gaining traction in democracies the world over as evident in the run-ins between the executive/ legislative branches of the state and the judiciary. While no sensible person can possibly support the concentration of supreme power, as it were, in the hands of the executive without the checks and balances provided by the process of judicial review, those staffing the courts and sitting in judgment also need to introspect. Corruption, favouritism, nepotism, delays in justice-delivery, arbitrariness in selection of matters to be heard, courts delivering verdicts swayed by public opinion rather than depending on evidence, judges making a priori assumptions as opposed to following the letter of the law. These and many other such allegations against the judiciary ~ in Israel and elsewhere ~ need to be addressed by the honourable courts themselves. Urgently. If not, there will be more laws of the Israel kind and that will prove to be the end of justice.