Netanyahu’s government is trying to bring its judicial system back in line with what existed in Israel during its first five decades and more closely resemble what most democracies do today.
In 1995, Israel’s Supreme Court unilaterally altered Israel’s system of government. Prior to this, Israel’s democracy was based on the British model, in which the Court cannot strike down laws. The Israeli court, on its own accord and with little public discussion, carried out a regime change.
In most cases, a change in a country’s system of government comes about as a result of a democratic agreement or through a coup. In Israel, it came about through a highly-unusual and surprising judicial ruling.
In 1992, the Knesset, Israel’s Parliament, passed, by a regular majority, two Basic Laws related to human rights: ‘Basic Law: Freedom of Occupation’ and ‘Basic Law: Human Dignity and Liberty’. The first passed with only 26 votes in favor (out of the 120-member parliament) and the second with 32 votes. The Chair of the Constitution and Law committee at the time, MK Uriel Lynn, explicitly told his fellow MKs before the vote, “We are not granting the Supreme Court greater weight…there is no room for a Constitutional Court…which [through this law] will be granted special power to overturn legislation.”
Judicial Selection Closed Loop of Power
Israel’s judicial selection system is unique, and not in a positive sense. In Israel, the judges and jurists hold the majority of the Judges’ Selection Committee, giving them a veto power over judicial appointments.
In almost all democratic countries, Supreme Court or constitutional court judges are appointed by the elected officials, whether the legislature or the executive. A 2019 study of judicial appointments to constitutional courts of in the 36 OECD countries (supreme courts or constitutional courts) found that 24 out of 36 countries surveyed appoint their judges in a system that grants the power to elected officials exclusively. For example, in the United States, supreme court judges are appointed by the president, with the confirmation of the Senate; in Germany, constitutional court judges are appointed by both chambers of the legislature; in France, the judges of the constitutional council are appointed by the President and both houses of representatives in equal proportion, and alongside them serve former state presidents.
In other countries, in which the judges are appointed by professional committees and not the politicians, namely the UK and Luxembourg, the courts do not have the power to strike down laws.
The only other countries in which the courts can strike down laws without being appointed by the elected officials are Greece and Turkey. The Israeli system has the worst of both worlds: its Court can overrule the elected officials, while being a self-perpetuating clique unaccountable to the public.