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  • Dr. Bell Yosef

Judicial Independence and National Security

Several initiatives intended to fundamentally alter the legal and governmental system are currently on the political, legal, and public agenda. This reform – if passed in its present form – would curtail judicial independence in Israel and the courts’ ability to effectively oversee power. This curtailment is expected to have harsh implications for Israel’s national security and its ability to defend itself, both on the domestic and international levels. Dr. Bell Yosef explains the different ways curtailing judicial independence could harm Israel’s national security, and the main way to prevent this.


Dr. Bell Yosef · February 12


What Is the Proposed Reform?   

 

Since the present coalition Government’s formation, initiatives have been promoted, both in the Government and the Knesset, to fundamentally change the checks and balances between the branches of government. These are wide-ranging changes including changes in the judicial selection method which would guarantee coalition control of appointments; a significant narrowing of the judiciary’s authority to exercise judicial review over legislation (constitutional judicial review); prohibition of judicial review of basic laws; stipulating an override clause with a regular coalition majority (61 Members of Knesset) which would make it possible to prevent constitutional judicial review in advance; and eliminating the Reasonableness Standard, which constitutes a central cause of action in public law. According to various reports, additional initiatives concerning government legal advisors, the right to strike, and the right to protest are also on the agenda.

 

It is important to state – even during the election campaign for the 25th Knesset, the legal system stood at the heart of public debate. During the various election campaigns, many promises to reform the legal system were heard. And reform in and itself can be a welcome thing. One cannot ignore that the legal system has ills that demand treatment, first and foremost the absence of internal control mechanisms and a massive overloading of all judicial instances. Yet, the proposed reform does not address these, but rather dismantling the checks on the Government, and reinforcing the Government. At present, the Government controls the Knesset for all intents and purposes. If the reform succeeds in its current format and scope, the Government would be the only effective branch among the three branches of government. If it wishes, it may act; if it wishes, it may abstain.

 

Furthermore, a significant difficulty also arises from the way the reform is being deliberated – hastily, almost unilaterally, without hearing the positions of professional government legal advisors before submitting legislative bills. These government legal advisors have expressed firm objections to many of the reform’s components. Many opposition members are not granted the floor to speak in committees. The initiative is being advanced within just a few weeks by a small few. It is expected to win wide coalition support due to various reasons and interests, many of which have nothing to do with the legal system, but rather the need to bolster the Government and allow it to pass a policy whose compatibility with the basic laws and legislation is doubtful, as an understatement.     

 

What is the Public’s Stance?

 

It should be emphasized that there is no public support for the way the various initiatives are progressing. A survey conducted by the Tachlith Institute in December 2022 indicates that there are many issues which are far more urgent for the public: personal safety, the high cost of living, improving infrastructures and transportation difficulties, improving the health and education systems, eradicating government corruption, environmental protection, and broadening peace agreements in the Middle East. All of these – each and every one of them – are more important to the public than promoting a deep reform of the legal system. Yet, there is no brisk activity on the part of the coalition with respect to any of these issues, but rather only with respect to judicial reform, which is presented as having great urgency.

 

Furthermore, there is no consensus about the reform’s content either. The current initiatives seek to use the present political power to dismantle the existing checks, and change the fundamental rules, framework rules within which the branches of government act. Even this position stands in opposition to the public’s will – a public whose vast majority is not interested in the Government using its power in a heavy-handed manner and creating facts on the ground without any dialogue.

 

Segmentation of data among the general public demonstrates that only 20% of the general public is interested in political heavy-handedness and taking advantage of the given political situation. In contrast, 70% of the public believes the Government must promote policy while maintaining the democratic rules of the game, which constitute the framework rules within which all government entities operate, independently of their own positions or interests. Among these 70%, the great majority even supports improving the democratic rules of the game and dialogue with various entities with different stances, while working towards compromise and broad consensus. It is worth mentioning that even among those who voted for the Likud, Israel’s largest party and the Prime Minister’s party, 62% support policy change while adhering to, or improving, the democratic rules of the game.   

 

What Does the Proposed Reform Mean?  

 

A paper recently published by the Tachlith Institute, in partnership with the Institute for National Security Studies (INSS), indicates that these initiatives endanger Israel’s national security. These initiatives – if passed as is, in a hastiness that does not enable dialogue, and with a heavy-handedness that refrains from reaching consensus – they would curtail the legal system’s independence, and the independence of courts in particular, and their ability to exercise effective oversight of the branches of power. As defined in the study, “independent courts” means courts that are not subject to political authority, whose judges are not representatives of governmental or other entities, and where the judges sitting in judgment feel free to judge without external intervention or fear that their rulings could harm their professional status. The term “effective supervision by the courts of the government branches” means that the courts’ rulings are binding on the branches of government and obeyed by them, and that the courts have decisive standing regarding the interpretation and application of the law. This term also covers the right of full access to the courts and of proper legal proceedings carried out without the intervention of governmental or other entities. These two components are intertwined and harming them would harm the State of Israel’s democratic character, which is so vital to the State’s national security.

 

How Do the Current Initiatives to Change the Checks and Balances between the Branches of Government Endanger National Security? 

 

To answer this question, one must first understand how to define national security. While there is no official definition of the concept “national security”, this concept is normally understood as comprising four separate components, which are required to protect the State of Israel’s national objectives: first, guaranteeing the state’s physical existence by protecting its territorial integrity alongside the security of its citizens and residents; second, maintaining the state’s values and its character as a Jewish and democratic state; third, guaranteeing both its economic fortitude and societal resilience; and fourth, the State of Israel’s status in the world, in the broader international framework and particularly in its region.

 

The ability to protect these four components – each of which is vital for the protection of national security – stems from two different aspects. The first is the domestic aspect, which examines the state’s internal impact; the other is the external aspect, which examines the impact of the various international arenas. The various initiatives to promote reform of Israel’s legal and governmental systems are expected to deal a blow to Israel’s ability to maintain both these aspects of its security.

 

What Is the Initiatives’ Expected Impact on the Domestic Level?  

 

At this stage, four different factors that could harm Israel’s national security on the domestic level can be pinpointed. The first is violating the State of Israel’s character; second, maintaining the legality of activity by the regime, and the security forces in particular; third, the State’s economic fortitude; and fourth is its societal resilience.

 

As we mentioned, national security also includes the State of Israel’s character as a Jewish and democratic state. The current reform, if passed as presented in the various initiatives made public at the end of January and beginning of February 2023, it would diminish the State of Israel’s democratic character. Such a substantial blow to judicial independence and courts’ ability to oversee the regime would allow the regime to wage harm against individuals in society and impose restrictions arbitrarily. The existence of checks and balances on the regime is imperative to maintain the state’s democratic foundations. Israel’s character as a Jewish and democratic state is part of the State of Israel’s basic identity and harming any one of these components would impair its identity and essence, and would be akin to harming the national security.


Furthermore, citizens need protection not just from external enemies, but also from the regime. It is important to remember that this is the most fundamental source for the foundation of democracy as expressed in the Magna Carta as early as 1215. It is imperative to guarantee that the regime does not overstep its role. Within the broader bounds of the term “regime”, special weight should be granted to the security forces, which have immense power and influence on individuals. A system of checks and balances leads the branches of government, and the security forces in particular, to maintain conduct that complies with the law, while placing boundaries between what is permitted and prohibited. It is clear to all these security forces – IDF, police, Shin Bet, Prison Service – that their powers are limited, and if they deviate from their powers, they will need to account for themselves. In this sense, judicial review has an impact even when it is not exercised – its very existence guarantees the security forces will act according to law. We must think of the vast range of powers and authorities held by the security authorities and their ability to harm individuals: arbitrary arrests, investigating detainees without safeguarding their rights, violating privacy through physical and technological means, unlimited use of weapons etc. The existence of an independent legal system with an effective ability to oversee the Government would guarantee that even the security forces are subject to the law.

 

The State’s economic fortitude is also critical for guaranteeing the State of Israel’s ability to defend itself. Today, a substantial part of the State’s budget is already devoted to security needs. However, the reform is expected to lead to a blow to the State’s economy. Expert economists, along with official international credit rating agencies, have already warned against a lowering of Israel’s credit rating, difficulty attracting investments and an increase in the consideration demanded for them, and more. Realization of this economic blow is also expected to hinder the State of Israel’s ability to defend itself.

 

Alongside Israel’s economic fortitude, one cannot ignore the importance of societal resilience, which also plays a critical role in Israel’s security. The ability to seek recourse in courts, which act in an independent and objective manner, enables minority groups, which can sometimes be harmed by the political process, to solve the disputes through legal channels. These channels guarantee conduct according to clear and orderly criteria which give it great legitimacy. In the absence of minority rights enforcement, we could witness domestic discontent, which could spill over into violence between different groups in Israeli society. This could also have a secondary impact, such as a refusal to fulfill civil obligations such as military conscription.

 

What Is the Initiatives’ Expected Impact on the External (International) Level?  

 

With respect to the second aspect, one can address the impact on two levels: first, the impact on foreign relations; and second, a substantial burden on Israel’s ability to defend itself in the arena of international law.

 

Regarding the foreign relations level, Israel’s central alliance with the United States can be counted first and foremost. This alliance relies on a partnership of interests and the State of Israel being the only democracy in the Middle East. This partnership of interests is very broad, ranging from military cooperation and coordination, economic and military aid through budgets and military equipment, support facing the Iranian threat, blocking anti-Israel resolutions in international bodies, and support against competing international alliances. At present, there are already voices in the American government speaking out against the proposed reform and casting doubt on whether it is democratic. If Israel is perceived in the eyes of the American Government – whether the political or administrative branch - as a state whose democracy is increasingly in decline, this could have an impact on the scope of the strategic alliance with the United States. This is even more true when it is clear that even within the Jewish lobby in the United States (which helps Israel within the American arena) voices against the reform are gaining strength, and it is coming to be understood as a blow to Israel’s democratic nature.

 

Even in the broader context of foreign relations, Israel’s status as a democratic state is highly influential. Israel’s democracy is a significant component in the quality of its relations with other states. Thus, for example, recently President Macron spoke about how France understands the initiatives as akin to a wound to Israel’s democracy, in a way that could impact future relations between the states. At this time, it seems the international arena is reformulating, and in this context the extent to which Israel is considered a democratic state could have a great impact on the question of which alliances Israel is able to join in the future. Each such alliance, as it forms, could have a potential impact on the ability to operate in the international arena.

 

This also has significant weight in terms of international politics: Israel, due to its control of the territories, is discussed over and over again in various international forums. The most prominent of these is the UN, particularly the Security Council. In many cases, these resolutions are biased against Israel anyhow. In this reality, maintaining ally states in international politics, all the more so allies that are veto-wielding players, is critical to Israel’s status in international politics. 

 

Israel’s ability to defend itself in the legal arena is situated alongside foreign relations. Israel is under unrelenting international criticism, emanating from many entities. The fact that the State of Israel is a democratic state, which investigates and prosecutes many of the events the criticism concerns, is central to its ability to handle these criticisms. However, this ability will only stand as long as Israel remains a democratic state with an independent and objective legal system which can effectively investigate claims against the government.

 

This is reflected particularly in international criminal law. In many cases, various states and international tribunals are interested in investigating claims of Israeli violations of international law. In many such instances, these attempts are averted due to a fundamental principle in international criminal law, called “the principle of complementarity”. This principle stipulates that the jurisdiction of international tribunals and national instances is complementary to states' jurisdiction, that is to say – not primary jurisdiction. Therefore, these tribunals can only address the alleged violations if the matter before them is not treated by the relevant state. As long as petitions filed in the High Court of Justice and administrative courts are examined objectively, in a system whose independence is guaranteed, Israel can prevent many of the international attempts to investigate Israel as a state or entities that acted on its behalf (whether soldiers who acted on the battlefield or senior officers). From the moment Israel’s courts lose their independence, the State of Israel will find it very difficult to claim the principle of complementarity in those international and national arenas. The impact could be particularly central given the UN General Assembly’s resolution, dated December 30, 2022, requesting the ICJ in the Hague provide an Advisory Opinion on the legal consequences arising from Israel’s continuing occupation of the territories.

 

The independence of Israel’s legal system also makes it possible to block many arguments sounded by the BDS movement, which seeks to wage influence and promote sanctions and boycotts against Israel. Numerous concrete steps have been blocked by Israel through relying on the existence of an objective process of investigation and examination of many claims, through the very courts whose independence some are currently seeking to harm. Impairing the judicial independence of the Supreme Court and the lower instances, alongside impairing the ability to effectively oversee the government as a result, would harm Israel’s ability to stand up to these legal (and political) claims.

 

Looking Ahead

 

There is no dispute that the legislative branch, which was elected in democratic, equal, and fair elections, has the right to execute reform of the legal system, particularly when this reform was on the agenda as part of the elections. However, this is neither the reform nor the way. This reform, which proposes to reinstitute the checks and balances between government institutions does not create, as claimed, new checks and balances, but rather seeks to remove the existing checks and balances and transfer most power to the Government and it alone. This reform is also being pushed forward hastily, in a manner that does not give weight to advisory entities, whose goal is to enable the state to execute its policy according to law. It is clear from committee meetings and the public atmosphere surrounding the reform, that there is no real will for dialogue or willingness to compromise, rather this is a unilateral process which reflects the exploitation of political power, instead of in-depth contemplation on what is best for the State and future generations.

 

The right way to execute the reform is through Basic Law: The Legislation, which would be legislated as part of a consensus-based legislative process. Each side would need to make compromises, some painful. But this is the only way that would allow the maintenance of judicial review, would grant it legitimacy on the part of extensive parts of the people, and would outline the bounds of the constitutional game for many years to come. If the current Government seeks to create a sustainable arrangement according to which political entities would be required to act in the future, it must choose this path, identify areas of agreement despite differences and polarization, and demonstrate a willingness to act accordingly.

 

Israel’s fundamental institutional arrangements are currently eliciting more interest than ever before. Numerous women and men are taking to the streets to express their position, and to take part in a process of civic participation. This reality can be transformed from a crisis to a constitutional moment based on which Israel would enact a full and complete constitution, based on sustainable arrangements that would be blessed with long lives. This is the way, and this is the time.

 

Dr. Bell Yosef

Head of the Tachlith Institute’s program “Democracy’s Rules of the Games”, researcher and lecturer in the field of public law.

 

 

This paper is based on broader research, conducted in collaboration with adv. Pnina Sharvit-Baruch (INSS). For full source references, see the original complete version in Hebrew here.                                       





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