Watching from afar, the divisive scenes unfolding in Israel are certainly striking. Central to the divide is the ongoing debate surrounding the judicial reform spearheaded by the governing coalition.
Protests against the reform recently entered their 34th week. 10,000 IDF reservists have committed to suspend their voluntary reserve duty. The Israeli Medical Association, representing about 95% of doctors in Israel, announced a strike. A business forum representing 150 of Israel’s largest companies adopted a similar approach.
Similar concerns are shared by Jewish communities in the Diaspora. The Board of Deputies for British Jews and the Jewish Leadership Council issued a joint statement opposing the “tremendous damage” being done to the “fabric of Israeli society, its regional security, and global status.”
In the US, the American Jewish Committee argued that judicial reform had strained the vital relationship between Israel and Diaspora Jewry. The AJC has also argued that the proposed judicial reform legislation “falls short both substantively and procedurally… [in maintaining] checks and balances.”
In contrast to these denunciations, the argument made by the governing coalition is that the proposed reforms are indeed, not that unique.
Bezalel Smotrich, the current finance minister, argued that the “emphasis on judicial reform is meant to bring Israel closer to the American political model.” Perhaps the only manner in which the US system is being incorporated is the desire to increase the control that the executive and legislative branches have over the appointment of judges.
However, I contend that what is being pursued in Israel is not an apt comparison to the US. Instead, what Smotrich should have said is that Israel is trying to move closer to the United Kingdom. Should the current process continue as planned, it will likely result in a political system not too dissimilar from the present one in the UK.
Judicial reform will give Israel a UK-like political system
One of the critiques leveled against the government is that due to the unicameral nature of Israel’s political system, coupled with an uncodified constitution, the Supreme Court is one of few checks on executive power. The logic follows that any changes to this would mean an overly powerful executive branch, thus vindicating the AJC and the Board of Deputies in their charges.
But is this really true? The UK also has an uncodified constitution, where Acts of Parliament form part of the constitution. While Parliament is a bicameral system, the Lords have little meaningful power. The Parliament Acts of 1911 and 1949 abolished the Lords’ veto power and stated that bills could only be delayed by a year – allowing the Commons to pass the legislation it saw fit.
Furthermore, the Salisbury Convention means that the Lords will not vote against any manifesto pledges from the governing party in Parliament. This is particularly appropriate here as in July 2022, Likud announced their vision for judicial reform, thereby making it a key issue in the subsequent November election. In Israel, the proposed judicial reforms would ensure that the power to legislate lies with those elected to do so, as it does today in the UK with the dominance of the House of Commons over the House of Lords.
Already in the UK, checks on government power are somewhat lacking. In 2005, in Hirst v. United Kingdom (No2), the European Court of Human Rights ruled that the UK’s ban on prisoners voting was a violation of the European Convention on Human Rights. Twelve years later, David Lidington, then-secretary of state for justice, proudly stated that the Labour, coalition, and Conservative governments had “not enacted any change to legislation.” The case was officially closed in December 2018, yet the government had made no meaningful change apart from administrative amendments.
It is therefore apparent that despite checks on the UK supposedly existing via the European Convention on Human Rights, in practicality, it has little impact on executive power.
Another contentious issue surrounding the proposed judicial reforms is the “override clause,” discussed in February this year.
This states that the Knesset can pass legislation that is preemptively immune to court oversight and would ultimately prevail, should it conflict with an already existing Basic Law. While sounding nefarious, it is again not too dissimilar from the UK. In the UK political system, any Act of Parliament is automatically immune from judicial review.
IN ESSENCE, it almost already has an override clause inserted into every statute. In 2004, the Law Lords (the precursor to the Supreme Court) ruled that the indefinite detention of foreign terror suspects was incompatible with the European Convention on Human Rights. The government responded by passing the Prevention of Terrorism Act 2005, which merely allowed control order to be imposed on foreign and British nationals alike.
Despite the Supreme Court having previously ruled this action unlawful, it was unable to challenge the 2005 Act. The concept of parliamentary sovereignty is fundamental to the UK political system, and chastising Israel for trying to adopt something similar is foolish.
It is perhaps only the most recent change, ending judicial review of reasonableness, that is without proper parallel.
Nevertheless, it defies belief that the protests of 100,000 Israelis stem from intricate constitutional changes alone. Rather, it appears that protesters are being whipped into a frenzy by extravagant claims that the reforms mark the end of Israeli democracy.
People are free to protest, and it is wrong to dismiss their fears or compare them to settler riots against Palestinians. However, to pretend that the proposed judicial reform in Israel is without contemporary comparisons is disingenuous. If we accept that one in five Israelis have protested against judicial reform, then should there not be 13.5 million Britons protesting against the state of their political system? Of course, this is not the case.
Israel will be in no worse state than the UK should the changes succeed.
The Knesset is attempting to move towards being sovereign within its own system. Let us evaluate the merits of this argument, rather than pretend that any attempt to reform the judiciary is a step toward dictatorship.
The writer is a policy fellow of The Pinsker Centre, a campus-based think tank that facilitates discussion on global affairs and free speech. The views in this article are the author’s own.
Comments are closed.