The government-judiciary tussle in Israel

Vappala Balachandran
Ex-Special Secretary, Cabinet Secretariat

IN 1788, Alexander Hamilton, one of the founding fathers of the US Constitution, said complete independence of the judiciary is required to protect the citizen from the other two powerful wings of democracy — the executive which dispenses favours and holds the ‘sword’ and the legislature that ‘commands’ the purse and passes laws.

In 1803, the concept of ‘judicial review’ was initiated by then Chief Justice John Marshall of the US Supreme Court in the Marbury v. Madison case when he declared a law passed by the US Congress to be unconstitutional.

These two principles of interpretation, borrowed from the oldest written Constitution in the world, have been accepted by most countries claiming to be democracies. However, we do find some democracies, including India, trying to influence the judiciary’s independence in various ways. Earlier, it was a call for a ‘committed judiciary’; now, it is for adherence to the ‘will of the people’. Such predatory encroachment is not acceptable in any genuine democracy.

The latest to join this trend is Israeli Prime Minister Benjamin Netanyahu’s coalition government, which is described as “the most right-wing and religiously conservative government in Israel’s history.” Although it has no written Constitution, Israel has all along been following the US Constitution’s principles on the independence of judiciary. One of the first acts of the new Netanyahu government was attempting to restrict the powers of the Supreme Court. There is fierce resistance from the public to this move as it is interpreted towards diluting the corruption cases going on against Netanyahu.

There are four cases against Netanyahu dating back to 2016. Bitter polemics and open protests were seen from 2017, including 41-week demonstrations against the then Attorney General, Avichai Mandelblit, for allegedly delaying action. Counter protests were organised by Netanyahu supporters, some even threatening harm to the ‘left-wing’ supporters. They also tried to curb police powers. However, each time the court rebuffed them.

On January 18, the Israeli Supreme Court, in a ruling 10-1, ordered Prime Minister Netanyahu to remove Aryeh Deri, a senior minister in charge of health and interior, belonging to Shas, a coalition partner, from the cabinet over his earlier conviction in a tax fraud. Although Netanyahu did not comment, his Justice Minister Yariv Levin protested that “the Bench had chosen not to respect people’s choice.” Deri is the head of Shas which had won 11 seats in the Knesset, their Parliament.

On January 22, a huge crowd of over 1 lakh assembled in Central Tel Aviv to protest against the so-called judicial ‘reforms’. They also hailed the Supreme Court decision on Deri. The Israeli police revealed that similar demonstrations were held in Jerusalem and in other cities. As a result, Netanyahu was forced to dismiss Deri ‘with a heavy heart, with great sorrow.’

On February 2, Gali Baharav-Miara, Israel’s Attorney General, the first woman to be appointed to that post, wrote to Prime Minister Netanyahu that he must not be involved in the judicial system reforms legislation proposed by his government because it would amount to a conflict of interest as he was facing a corruption trial.

The powers of the Israeli Advocate General are akin to their American counterpart, although not in rank. The US Cabinet-level post was created by the Judiciary Act in 1789.

The US Attorney General, although appointed by the President after Senate confirmation, is politically neutral, being directly answerable to the Supreme Court under the 1789 Act.

Thus, in 1994, it was Janet Reno, then Attorney General, President Bill Clinton appointee, who nominated Robert Fiske and later Kenneth Starr as ‘independent counsel’ to investigate the Clintons’ involvement in the ‘Whitewater’ property case. Reno also approved Starr expanding his inquiry to cover the ‘Monica Lewinsky affair’.

Unlike in the US, there is no law defining the Israeli Attorney General’s powers. A committee convened in 1962, chaired by legendary Shimon Agranat, then a Supreme Court Judge, had recommended political neutrality for the Attorney General.

Netanyahu’s idea of passing a law to restrict the court’s powers might not work if we study the history of making of their Constitution. True, a Constituent Assembly was elected in Israel’s first General Election on January 25, 1949. Its first act was to pass the ‘Transition Law’ by which it reconstituted itself as the first Knesset. It failed to write a Constitution since the founding fathers could not agree. Religious parties opposed a Constitution as they wanted only the Torah. They did not want civil liberties, not ordained by religion. Even former Israel PM David Ben-Gurion had opposed it in 1949 saying that more important work had to be done.

Hence, the first Knesset decided on a compromise resolution by Israeli politician Yizhar Harari that instead of a single document, a series of ‘basic laws’ would be written by the future Knessets. This was called the ‘Harari Resolution’. As a result, 11 ‘basic laws’ were written between 1958 and 1992. Israel is guided by that.

Critics like Netanyahu say as a result, the Israeli Supreme Court has assumed disproportionate powers in interpreting the ‘basic laws’ to the detriment of elected representatives.

Justice Minister Levin had announced several ‘judicial reforms’ which would allow the Knesset to overturn Supreme Court decisions with a simple majority of 61 votes in the Knesset with 120 seats. Levin also proposed that politicians should be empowered with a greater role in the appointment of SC judges and that ministers should appoint their own legal advisers instead of using independent professionals.

There is no clarity whether Netanyahu could muster enough Knesset majority to pass such a substantial legislation, especially after a Times of Israel report on a TV poll on January 2 that says his government would drop to 58 seats from 64 if polls were held now. Also, would he be required to summon a Constituent Assembly to codify such a drastic change in the relationship between the key organs of governance in his country? If so, how?

Views are personal