By Oshy Tugendhaft, Attorney, Johannesburg
“The first thing we do is, let’s kill all the lawyers”. So proposed Dick the Butcher, in William Shakespeare’s Henry VI. USA Supreme Court Justice, John Paul Stevens, shared this reading of the line, in a 1985 decision: “As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of Government.”
The Israeli Government’s judicial overhaul objective is to “kill the judges”. It is designed to give the ruling coalition an overriding say in the selection and appointment of judges, and to significantly circumscribe the Supreme Court’s power to review laws passed by
To stifle criticism of this reform, two myths have been perpetuated by the Government. The first, that the judges appoint themselves. The second, that under a democracy, the will of the elected majority in the Knesset should not be frustrated by judges not elected by the people.
We need to expose these myths.
The judges don’t appoint themselves. Israel has a judicial selection committee, comprising 9 members: 4 representatives of Government, 3 Supreme Court judges, and 2 representatives of the Israeli Bar Association. The appointment of a Supreme Court judge requires a majority of 7 of the 9 members of the Judicial Committee. Accordingly, representatives of the Government have an absolute veto regarding any such appointment, and so do the 3 judges. A most balanced and equitable system
The second myth is even more egregious. It garners support from the thesis that because a government which holds a majority in the Knesset is representative of the will of the electoral majority, the Supreme Court should not have the power to strike down laws passed by that government. But that is precisely what a liberal democracy demands: that the courts must enforce the rule of law and hold government to abide thereby.
In addition to increasing the majority vote required of the judges to invalidate any law, it is further proposed that any law which the Supreme Court invalidates on constitutional or unreasonable grounds, the Knesset, by simple majority, must have the right to override. The Government would thus arrogate to itself the unlimited power to determine the validity of its own laws. In addition, if the Government determines that a particular law is a Basic Law, it can preemptively in advance preclude that law entirely from judicial review.
The ruling coalition in the Knesset would have absolute power. The Supreme Court, which for 30 years has served as the only check on that power, would be emasculated.
The separation of powers is a fundamental principle of a liberal democracy. In Israel, that separation is only achieved with an independent Court that can review and set aside legislation and administrative conduct which violates constitutional principles or lacks rationality. Absent that constraint, we encounter the tyranny of the majority, about which the renowned French political scientist and philosopher, Alexis de Tocqueville, expressed concern nearly 200 years ago. So too, John Stuart Mill, in his 1859 book “On Liberty”, warned about the inherent weakness to majority rule in which that majority pursues exclusively its own objectives at the expense of minority factions, resulting in their oppression.
Since Israel, unlike other liberal democracies, does not have separate legislative and executive arms of government, nor a bicameral legislative body, the only effective check against government exploiting its majority to pass whatever laws it may choose is the Supreme Court’s review power to strike down laws which offend constitutional values and the rule of law. It is Israel’s only protection against the tyranny of the majority. That was precisely Tocqueville’s concern: that unchecked political power will eventually always lead to tyranny.
We, in South Africa, can readily appreciate the legal position under apartheid, with absolute parliamentary sovereignty and our courts bereft of any judicial review power in respect of any laws passed, not least the pernicious arbitrary detention laws. In contradistinction, our Constitution guarantees personal rights and freedoms and entrenches the power of the courts to invalidate any legislation or exercise of power which violates the Constitution. Many judgments of the Constitutional Court have declared unconstitutional and invalid laws passed by the ruling ANC government and the unreasonable exercise of administrative powers.
The controversy created by the Government’s intended judicial overhaul is the most profound and critical internal issue that Israel has faced since its establishment. The divisiveness and rancour that this proposed legislation has created is as unparalleled as it is tragic. The implementation of the proposals will forever adversely change the fabric of Israeli civil society.
Disregarding Netanyahu’s personal agenda in the face of his criminal indictment, his protestation that the judicial overhaul will not destroy, but rather strengthen, democracy, is, ironically, the mantra of every demagogue justifying the erosion of the courts and the rule of law on the pretext that a governing majority must be the only and final arbiter of its exercise of political power. That, precisely, is the recipe of every authoritarian state. Unsurprisingly, therefore, immediately after the initial law was passed in mid -July, removing the power of the Court to apply the reasonableness standard, Minister Ben-Gvir crowed glowingly and chillingly that this was only the beginning and “the salad bar is open”. Beware the slippery slope.
We must never take democracy or democratic values for granted. They don’t selfregulate. In every democracy it is the responsibility of the people – hence the valiant indefatigable 30-week protests – to guard against the potential disintegration of that democratic order through the concentration of hegemonic power, which finds expression in Lord Acton’s famous warning:
“Power tends to corrupt and absolute power corrupts absolutely.”
The Israeli Supreme Court, which for decades has enjoyed international respect and recognition for its independence, integrity and profundity, has provided, and must continue to provide, the necessary protection against any abuse of power by any government du jour. If the judicial overhaul proposals are introduced, it will forever be stripped of that power and Israel will cease to be a liberal democracy.
If you want to be a democracy, there can be only one solution. You need broad consensus for anything that dramatically shifts the balance of power and increases its concentration in the hands of the government. Any radical changes must be resisted because they don’t allow for careful reflection over successive parliaments. If there should be any room for improvement of the Supreme Court, absent rational deliberation and ultimately consensus, it will lead to civil disobedience and revolt.
• Published in the September 2023 issue – Click here to start reading.
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