Judicial Overhaul in Israel

Lessons for our politicians and all people who enjoy the freedoms provided by a democracy underpinned by the rule of law

Israel might not be the first country that comes to mind when considering the importance of the rule of law. It is not ranked by the World Justice Project Rule of Law Index. In 2022 to Australia was ranked 13 out of 140 countries by the World Justice Project. However the events that have taken place in Israel in the first few months of 2023 have lessons for all of us especially our political leaders.

The Prime Minister of Israel Benjamin Netanyahu undertook a judicial overhaul under the guise of a proposed reform. (Note: the plans to overhaul the judicial system have now been put on hold until the next parliament session.)

The reforms had two major changes; greater power to politicians to select judges and the ability for parliament to overrule the judiciary.

1. The Power to Select Judges

The proposed reforms would give Israel’s politicians greater power to select judges.

In Australia, politicians and only politicians select judges. That is not caused any great difficulty as that selection of judges has almost always been based on merit. However that does not occurred with respect to two of Australia’s administrative review bodies, being the Fair Work Commission and the Administrative Appeals Tribunal. With respect to the AAT, the current Federal Government has indicated it will be abolished and replaced it with a new tribunal. This has been brought about by the previous Federal Government stacking the AAT with what might be described as government friendly appointees.

In the United States of America, the appointment of judges to senior positions is almost always based on which political party the judge has supported. On issues that involve a political element, decisions are often, if not always, based on which party appointed the judge, or the majority of judges, to the bench hearing the matter. That is not in the case in Australia for our judicial bodies.

2. Power to Overrule the Judiciary

Second, the reforms would permit the Israeli parliament to overrule the judiciary. This reform was going to remove the independence of the judiciary and make judicial determinations subject to Parliamentary oversight.

The independence of the judiciary is one of the key pillars of the rule of law.

I have argued elsewhere that it is the most important rule of law principle. If legal disputes between persons or a specially between a person and a regulator or government department cannot be resolved between the protagonists, it is left to the judiciary to determine the parties rights and obligations. Many legal disputes involve actions against the State. The State is run by the prevailing ruling party which will usually have a majority in Parliament or will be able to form a minority government.

If Parliament was able to override the judiciary it would permit the arbitrary determination of disputes by the ruling party, and not according to independent determination and application of the law of the land.

In response to the proposed Israeli reforms, there has been mass protests by Israelis, hospitals have stopped non-emergency services, diplomats have walked off the job, and flights of been disrupted. About 80,000 demonstrators joined a rally in Jerusalem against the reform package. Perhaps most significantly, threats were made by military personnel opposed to the reforms that they would not report for duty. In Israel this has caused a very serious security issue.

The Israeli Prime Minister and the ruling parties initially held out against the protesters. However earlier this week they perhaps recognised the enormous difficulties the proposed reforms were creating amongst Israelis and the reforms were suspended.

This demonstrates that the rule of law is there to benefit the people, and it is the people that must understand its importance and react when it is under threat. In addition politicians must be carefully watched by the people as they often think in terms of increasing their own power at our expense.

– Malcolm Stewart, Senior Vice President