Netanyahu’s proposals would change the way Supreme Court judges are appointed in favour of political control

Some of the best judges in the UK and elsewhere are Jewish. Yet in Israel, where Jewish people set up a homeland of their own in 1949, the government of prime minister Benjamin Netanyahu wants to emasculate the judges of the Israeli Supreme Court despite sustained and vociferous opposition from Israeli society, which famously loathes bad justice.

In a nutshell, the Netanyahu proposals would change the way Supreme Court judges are appointed in favour of political control; grant the Knesset or Israeli Parliament the power to overrule the Supreme Court; limit judicial review of administrative action; prohibit the Supreme Court from ruling on the constitutionality of basic laws; and keep him out of jail.

This article is not about the rights and wrongs of the creation of the state of Israel and the displacement of the Palestinian people in its wake. Like the Cyprob, the Israel-Palestine problem is so intractable it will only be resolved on Judgment Day and I prefer to give it a wide berth save to say with Nusrettin Hoja that both sides have a point.

Most Israelis who demonstrate against the Netanyahu proposals see Israel as an open and free society subject to the rule of law administered by independent and impartial judges as opposed to a closed conservative theocracy dominated by cliques of religious fanatics backed by complaisant judges.

The fact, however, is there is a real problem in representative democracies between elected executive and legislative power on one side and the administration of justice by unelected judges on the other.

Judicial activism is the bane of all governments in democracies everywhere. Judges do not just interpret the law of the land. Though they would deny it, judges do make law in the course of adjudication and in countries with constitutional arrangements based on the separation of powers, problems frequently occur at the interface.

Judges are often criticised for frustrating executive power and making law without democratic legitimacy that the other arms of government flaunt as if being elected were licence to act unlawfully.

Executive power is subject to judicial review and legislation is interpreted by judges in a variety of circumstances as it should be. In common law countries like UK and Cyprus, private law is often judge-made in accordance with the doctrine of binding precedent to ensure like cases are treated alike.

In countries with a written constitution, Supreme Courts make law by a principled interpretation of the constitution to suit the prevailing zeitgeist in political, economic and social matters and advances in science and technology that throw up problems before legislation can be marshalled to make provision if required.

In the UK back in the 1980s when judicial review of administrative action first became fashionable, the government published a booklet with the acronym JOYS – the judge over your shoulder – designed to make government decisions by civil servants as judge-proof as possible. It contains a checklist of the usual grounds of challenge in judicial review proceedings. What is the source and limits of the power being exercised and for what purpose? What factors should be considered and does anyone have a legitimate expectation about how the power should be exercised? Are any human rights engaged and is the decision proportionate to a legitimate aim?

Ever pragmatic, the British sought to discourage judicial review by making government decisions judge-proof. It is extremely difficult in countries where the rule of law prevails to prohibit challenges to government decisions but there is nothing wrong and everything right with making them judge-proof since it is conducive to good administration.

One aspect of the system in UK that supports Netanyahu’s key proposal to grant power to the Knesset to overrule the Israeli Supreme Court, is the fact that in the UK, Parliament is sovereign and can reverse, repeal or amend any law including judge-made law from the UK Supreme Court.

However, I can only think of one example off the top of my head when the legislature intervened directly to reverse a ruling by the highest court in the land on the ground that it was wrong.

Way back in the1960s a policeman stopped a car whose driver decided to speed away. The policeman clung onto the car to apprehend the driver who then drove in a manner and at a speed that caused the policeman to fall off and be killed.

The driver was convicted of murder and on appeal the highest court in UK held that a person is to be taken to intend the natural and probable consequences of his actions and upheld the conviction.

There was an uproar in legal circles because intention in murder and other offences was thought to be subjective. Parliament was therefore forced to intervene and pass a law that reversed the decision and provided that to determine intention natural and probable consequences is just one factor in to be considered in light of all the evidence.

Of course, the political system in UK is different to that in Israel and there are checks and balances and the legislative process involves a second revising chamber with expert legal and judicial input that ensures proper respect for legal policy, legal certainty and the integrity and dignity of the judicial process.

No such second chamber exists in Israel. More importantly, there is a lot of horse-trading between small extremist parties and mainstream parties that win elections but no overall majority. Subjecting the Israeli Supreme Court to that kind of political horse-trading would be highly disrespectful and undermine the dignity and status of the court.

The proposals put forward by Netanyahu lend themselves to resolution by referendum rather than the antecedent parliamentary election he won. Referendums are exclusively focused on the issues in hand and much more democratic and would provide a good ladder for everyone to climb down.

 

Alper Ali Riza is a king’s counsel in the UK and a retired part-time judge