Most of the commentary that I’ve seen coming out of Israel regarding the government’s plan to reform Israel’s higher judiciary to give the Knesset, Israel’s Parliament, more say in the appointment of judges, has come from the left and from secular Israelis. The output of British media seems to be extremely hostile to the reforms and the proposals, which have been postponed until after the Passover holiday, which are heavily featuring the protests in Israel that have brought secular Israelis out onto the streets in their tens of thousands.

Having looked at this issue I can see two sides to this matter. In my view I can see good reasons for the reforms as Israel has a permanent left wing bias to its higher courts with the members of the highest court in the land who are able in large part to pick their successors. Reforming the court and allowing more democratic input to the selection of judges via the Knesset, would remove this permanent leftist bias, which is something that I approve of as courts in my view should be neither left nor right but instead honest and impartial.

However I can completely understand the point of view of secular and non-Orthodox Israelis who are protesting about the changes. They are worried that with the shift rightwards in Israeli politics, something caused by both the need for security, the almost complete collapse in support for the mainstream Israeli Left in the form of the Labor party and by demographic changes such as the growth in numbers of Haredi or Ultra-Orthodox Israelis, that their lives will be adversely affected by the court changes. Those protesting do have a point as because of the rightward shift in politics it’s likely that the Supreme Court would also shift in tandem with the Knesset membership and this will end up with the court, now much more right wing, passing judgements that could result in life becoming much more difficult for secular Israelis and Israelis who follow non-Orthodox paths within Judaism.

But there are voices out there, sensible and sane voices, that can see a positive side to the judicial reforms. One of those voices is Melanie Phillips, who writing in the Jewish Chronicle has pointed out that although there are aspects of the reforms that should be criticised, much of the proposed reform really only takes the Supreme Court’s powers back to where they were in the mid 1990’s,prior to the court becoming more politically activist. Ms Phillips said in her article that the Left in Israel is ‘aghast’ that the Supreme Court, which has ‘held the progressive line’ in Israel in the face of elected governments that are opposed to such policies, is being reformed.

Ms Phillips said of the court’s current practises:

It allows anyone to petition the court even if they have no legal standing. It justifies its rulings on a vague and subjective term of “reasonableness” which has no basis in law.

The court routinely employs double standards by favouring left-wing over right-wing projects or the rights of Arabs over Israeli Jews. People say there’s no longer any point in voting since the judges run the country.

I must admit that having unelected and largely self-appointed judges is not conducive to democracy and if people feel that there’s no point in voting because the judges are in charge then that’s not good either.

Ms Phillips makes the valid point that in the USA the higher judiciary such as the US Supreme Court is made up of political appointments and that in the UK judges cannot strike out legislation passed by Parliament and given Royal Assent, but this has not turned these nations into fascist dictatorships. In Israel the situation is that although the people can change the politicians, Israelis are stuck with a Supreme Court that they can’t vote out, which is not able to be changed by government and which has enormous power, far more than the British courts, to annul legislation passed by the democratic elected legislature.

Ms Phillips added:

True, Israel lacks the checks and balances of the British and American systems. This is because Israel’s political structure is deeply dysfunctional and needs radical reform.
But while politicians at least must be elected every four years, the judiciary has no checks at all.

With a judiciary that has no checks on it you have a situation where a tiny clique of left wingers and progressives can control the direction of the country with no way to stop or moderate this overly mighty set of judges. That does not seem to me like a suitable situation for a democratic nation.

There are without doubt two sides to this argument over the Israeli judicial situation but too often the mainstream media in the West is only giving one side of the story, that of the protestors who are opposed to the judicial reforms. Ms Phillips’s article provides some balance to the story and in my view should be read by anyone who is interested in Israel and Israeli politics.