UCLA Younes and Soraya Nazarian Center for Israel Studies, November 6, 2017 - In his talk titled "Israel’s Judiciary under Threat," Professor Menachem Hofnung, Immediate Past Chair of the Department of Political Science of the Hebrew University of Jerusalem, outlined how reliance on the Israeli Supreme Court to solve political issues beginning in the wake of the Six-Day War and in the decades that followed could be undermining the judiciary’s independence today.
The legacy of this trend, the resulting activity of the Supreme Court, and the ensuing backlash, Hofnung explained, have led to informal limitations on the Court’s power as well as formal proposals to limit the judiciary’s power and independence today.
In the Beginning
Professor Hofnung began his talk by discussing the creation of the Supreme Court following the establishment of the State of Israel, when judicial independence was not an enshrined principle in the newly established country.
"When the state was created, there was no consensus regarding the principle of judicial independence," Hofnung explained. "And when the Supreme Court was established it was seen as the 'long arm of the government.'"
Hofnung described how judges nominated in 1948 were selected according to a political formula in which political affiliation was taken into account. This overt politicization of the court changed gradually as it began to intervene in sensitive state matters by using powers of administrative review and statutory interpretation – since there was no established power of judicial review at the time. The 1953 Judges Act also formalized this growing independence by altering the selection process.
Rather than being appointed by elected governments, under the new law Supreme Court justices were picked by a selection committee that included nine members, four of whom were cabinet ministers and members of Knesset. The remaining five committee members were Supreme Court justices and lawyers elected by the Israeli Bar. This balance gave elected officials less say in the selection process.
The move towards a less politicized selection method was well received and as Professor Hofnung noted, "[w]hile the Supreme Court was called on more and more to intervene in political cases, it was still seen as a neutral player."
A Turning Point
The Israeli high court’s position changed drastically due to dynamics that emerged in the aftermath of the Six-Day War and subsequently in the 1980s. After the Six-Day war in 1967, with legal uncertainties surrounding settlements in the territories occupied by Israel, individuals frequently came to the court to address their status. This was the beginning of a growing trend of individuals using the court as a site to achieve political goals they couldn’t reach in the political arena.
This dynamic was entrenched in the following decades. The Likud Party’s surprise 1977 electoral win was followed by a series of elections in the 1980s in which the legislature was effectively split between that party and the Labor Party, which had long dominated Israeli politics.
The two parties were joined in the Knesset by small parties on the left and right and swing vote parties in the middle, Hofnung explained, which created political difficulties and a stalemate that led twice to agreements establishing national unity governments.
"Governments found that it was easier for them not to decide than to decide on politically sensitive issues," he said. "If a party made a decision that was not popular with their coalition partners, then those partners could switch sides and change the composition of the government. And in Israel, alliances can form new governing coalitions between elections."
Rather than risk settling political decisions in the Knesset and upsetting the balance of power, political actors pushed more controversial and cirtical issues to the Supreme Court to decide. This trend was compounded by legislation passed in 1992 by the Knesset which formally expanded the powers of judicial review.
At the time, this increased power was welcomed by a public that trusted the Court, Hofnung argued, and that believed that the political process was corrupt and could not bring substantial results.
Gradually the growing power of the Supreme Court gave credibility to the claim that the judiciary had become a "veto player" that effectively decided when policies were final through their decisions. This has resulted in a backlash against the court in recent decades, Hofnung explained.
This growing power made the court the increasing focus of political campaigns of religious parties frustrated by the Courts’ decisions and has resulted in political threats to limit its power.
Current calls for reform threatening the Court’s independence include changing the selection criteria for justices, establishing a constitutional court over the Supreme Court to decide constitutional matters – though as Hofnung pointed out, Israel has no constitution – changing the composition of the Judicial Appointment Committee, and other proposals.
He also highlighted similar initiatives, which have successfully limited the power of judiciaries in other countries considered "illiberal democracies," including Turkey, Hungary and Russia.
Hofnung concluded by explaining that if any of the proposed initiatives are passed, the court would be far less effective and much less independent in the future. But he also explained that a certain degree of damage has already been done.
"The judiciary is much less activist than before," he said. "It walks the line very carefully because the justices are aware that things can change very rapidly and that there are implications of their decisions for the future of the court. Court independence is an issue once again."