Israel’s justice system, once a symbol of legal integrity, has increasingly become a source of concern. A critical examination reveals a troubling trend: the concentration of power in the hands of unelected officials, leading to a democratic deficit and a lack of accountability. This issue is not merely a matter of legal technicalities; it strikes at the heart of democratic governance.
One of the central issues is the increasing activism of the Supreme Court, also known as the High Court of Justice, or Bagatz. The court has expanded its role from interpreting laws to effectively making them, often overruling decisions made by the elected government. This overreach is particularly evident in cases involving land rights, national policy, and even security matters. Since the court’s ruling in 1995 in the Mizrahi case, the court started to act as the “super-legislator of Israel.” This illustrates a fundamental problem: An unelected body, no matter how well-intentioned, should not hold the ultimate power to dictate the course of the nation.
The concept of “reasonableness,” as applied by the Israeli Supreme Court, exemplifies this problematic overreach. The court uses this principle to justify its intervention in government decisions, arguing that certain policies are simply “unreasonable” and therefore must be struck down. However, the term “reasonableness” is inherently subjective, allowing judges to impose their own political and ideological preferences onto the nation. This replaces the will of the people as expressed through their elected representatives with the personal views of a few judges. The problem is exacerbated by the fact that there is no clear, objective standard for “reasonableness,” thus leaving the door open for judicial overreach.
The lack of accountability within the judicial system further compounds the problem. Unlike elected officials, who are subject to the will of the people, judges are appointed and serve until retirement or removal by a special court that is rarely convened. This means that their decisions, even if widely unpopular or detrimental to the nation, are virtually unchallengeable. This could be less of a problem if judges were selected in a way similar to the way judges are selected in the US, with the nomination by the president and approval by the Senate. Or like most countries that give the power of judicial review of legislation to courts that are appointed by elected officials. The Israeli system, that was built like the system in the UK with courts that don’t have the power to review legislation, created a judicial appointment mechanism that limits the ability of elected officials to change the makeup of the court and gives veto power to the judges. Self-appointed and self-perpetuated court that holds so much unchecked power is a real threat to democracy. The “ecosystem” of the Supreme Court, the attorney general, and the legal establishment is seen as self-reinforcing, not subject to checks and balances, with little to no external oversight or means of redress.
This lack of accountability is particularly concerning when it comes to matters of national security. The court’s willingness to second-guess security decisions, under the guise of protecting civil liberties, endangers the country and usurps the authority of the democratically elected government. In one illustrative case, the Supreme Court interfered with a cabinet decision aimed at pressuring Hamas to release hostages. The cabinet had decided to “prevent the exit of family members of Hamas personnel from Gaza for medical treatment in Israel.” This policy, designed to create “pressure levers” on Hamas to return captured soldiers, was deemed by the court as an unreasonable measure, specifically as it related to “life-saving” medical care.
The court’s reasoning was that the cabinet decision was unreasonable and did not give enough consideration to the human rights of the family members of Hamas operatives. The court decided what it believed was the “reasonable” approach, replacing the elected officials’ judgment with its own .This intervention demonstrates a pattern of the court substituting its own judgment of what is “reasonable” for that of the elected government and its security apparatus. Reading this decision with five years’ perspective, very few people in Israel would think that caring for Hamas families over Israeli hostages is “reasonable”
The consequences of this judicial overreach are far-reaching and impact multiple spheres of Israeli society:
Erosion of democratic principles
The concentration of power in the hands of unelected judges undermines the fundamental principle of “government of the people, by the people, for the people.” Decisions are increasingly made by the judicial elite rather than by elected officials, which leads to the erosion of the democratic process.
Lack of accountability
Judges, unlike elected officials, are not directly accountable to the public, creating a system where the power of the judiciary goes unchecked. This raises significant concerns about the potential for abuse of power and the imposition of ideological agendas.
Interference with governance
The court’s consistent overturning of government decisions hinders the ability of the elected government to implement policies and carry out its mandate. This can lead to political paralysis and ineffective governance.
Undermining national security
The court’s willingness to scrutinize national security decisions and to override them endangers the state and prevents the appropriate agencies from making decisions that protect the state. The need for swift and decisive action can be hampered by judicial overreach.
Social division
Judicial intervention in sensitive issues such as land allocation and the nature of the state exacerbates social tensions and can lead to increased division. The court becomes a tool of conflict rather than a means of resolution.
Decline of public trust
As the court becomes increasingly seen as a political actor rather than a neutral arbiter of justice, public trust in the judiciary erodes. This undermines the legitimacy of the entire legal system.
The solution lies in restoring the balance of power and instituting greater accountability. The Israeli justice system needs to be reformed to ensure that the judiciary acts within its proper role of interpreting the law, not making it. This could include limiting the scope of judicial review, clarifying the meaning of “reasonableness,” and introducing mechanisms for greater accountability of the judges to the people.
To strengthen the democratic process, there must be a renewed commitment to the principle of the separation of powers. The judiciary must not overstep its bounds and assume the role of a super-legislature, and the elected government must be allowed to govern according to its mandate without constant interference from unelected officials.
Israel must recognize that a strong democracy requires accountability and balance. The current system, where power is concentrated in the hands of an unelected few, poses a grave threat to the principles of self-governance and popular sovereignty. Only by reforming the justice system and restoring the balance of power can Israel hope to maintain a truly democratic society, where all citizens have a voice and where those in power are held responsible for their actions.
The situation, as it currently stands, is that the court is not simply ensuring that the law is followed but rather is actively shaping the law and policies based on its own perception of what is right and proper. This transforms the court from a legal body into a political one, undermining the principles of democratic governance and eroding public trust in the justice system.
According to polls, even among the supporters of the opposition parties, 80% think the Israeli judicial system is in need of reform. We should make Israel a democracy again. And we can do it, together.■
The writer is a member of the right-wing National Religious Party and chair of the Knesset’s Constitution, Law and Justice Committee.