Israel’s Judicial Reform

On 14 March 1941, Robert Liversidge, born Jacob Perlsweig and son of a rabbi, was detained in Brixton Prison on the order of the then Home Secretary, Sir John Anderson, made under Regulation 18B of the 1939 Defence Regulations.   He was a small-time businessman in his late thirties with something of chequered past in that line, but the Home Secretary signed an order for his detention on the grounds that the Home Secretary had reasonable cause to believe that he was a person to be of hostile origin or association and that it was therefore necessary to detain him without trial.  Liversidge was of course not alone, some thirty thousand Jews were detained under Regulation 18B in Britain in the Second World War, including my kindly great uncle, Uncle Oskar.   Others such as my grandmother were told they could not live by the seaside for fear that they would assist a German invasion and so she was moved from Sunderland to Leeds.  For those detained this meant months separated from the family under harsh conditions, and this after each had undergone a perilous journey to escape their Nazi tormentors. Oskar was, however, offered a way out.   He obtained his freedom from detention by volunteering to work in a munitions factory in Coventry.  This just before it was fire-bombed with the terrible loss of life there. But once more luck was with him, he survived the war and lived to an old age.  Indeed, long enough to visit me regularly from his home in Manchester, always bringing me a packet of Brazil nuts from his grocery store, which made such a strong impression on me as a child – not being sure if the country was named after a nut or the nut after the country.

Robert Liversidge, however, did not go quietly to Brixton Prison. He brought legal proceedings against the Home Secretary for damages for false imprisonment that led to the decision of the House of Lords in Liversidge v Anderson, and in particular the minority dissenting speech of Lord Atkin which is now etched in the mind of every law student up and down the country.   The majority in the House of Lords dismissed Liversidge’s appeal on the grounds that if the Minister had certified he had reasonable grounds to believe the relevant matter identified in the legislation, then it was not for the courts of law to substitute their view for that of the Minister.   It was sufficient and indeed conclusive that the Minister declared he held a view or reached such a conclusion.  Lord Atkin took up the argument against this, expressing what is now accepted across the common law world as one of the foundation stones of the rule of law; namely that the executive has to answer to the judiciary, specifically if a decision was made arbitrarily, irrationally or wholly unreasonably.  There is often an arm wrestle between these branches, but the executive does not and must not get the last word or get to overrule or ignore the judiciary when it does not like the answer.   As Lord Atkin said famously, he knew of only one authority that permitted a word to mean exactly what the person who said it wanted it to mean, and that was Humpty Dumpty, in ‘Through the Looking Glass’.

Politicians and indeed the press still sometimes struggle with all this.  During our very own Brexit civil war, when the judiciary struck down the attempt of the executive to leave the European Union without a binding vote in Parliament, one particularly strident newspaper referred to these judges as, “Enemies of the People.”      There is it seems some difficulty in understanding that democracy is only completely secure when the people have a free vote, can both vote for and throw out a government of their choice and above all when the executive is constrained and reviewed by an independent judiciary, free from political influence. Anything else can lead to Robert Liversidge in Brixton Prison and Uncle Oskar detained in the Isle of Man.

This awkward passage of history has never been more relevant today and above all in Israel.  Much has been written already about the proposed judicial reforms which are being put forward by Netanyahu’s government.    The two key areas are first proposed changes to the judicial appointment commission so that there is greater political control in the selection of judges and secondly some restraint on the power of the Supreme Court of Israel to have the last say on the lawfulness of ministerial directive and legislation.     Each is a matter of the utmost importance and seriousness.

As to the proposed reform of the judicial appointments commission, the Netanyahu administration point out that there are many different models across the Western world for the make-up of these bodies in order better to ensure that the judges who are appointed reflect the society they live in.  This is true and desirable. What is objectionable, however, is the agenda of stacking a commission in a particular way, to ensure an in-built majority so that the most important and senior positions become little more than political appointees.   This has not exactly been a successful element of constitutional history of the United States of America.  Indeed, Lord Sumption in the Trials of States – Law and the Decline of Politics argues forcefully of the dangers of excessive politicisation of the judiciary.    The furore which followed the recent Supreme Court decision in Dobbs v Jackson Women’s Health Organisation overruling Roe v Wade being a good case in point.  There is a danger to civic society when so many ordinary people feel that they can no longer trust or respect the judgment of their supreme court and instead consider it to be advancing a political agenda.

The second area of proposed reform relates to the imposition of certain restraints on the extent to which the supreme court can strike down either ministerial decision or legislative act as being either unlawful on grounds or unreasonableness or arbitrariness or simply unconstitutional.   The tool for this being the so called “Override Clause” by which the effect of a Supreme Court decision could be overturned.  This feeds directly back to the debate between Humpty Dumpty and Alice in Through the Looking Glass – as to who is to be the master.  In a recent speech given by  Justice Esther Hayut, the President of Israel’s Supreme Court, it was pointed out that the Supreme Court of Israel is by nature hesitant to intervene and declare legislation to be unlawful (in the last thirty years this having been done only 21 times)  but crucially that when it has done so it has been to protect the rights alike of religious women in areas where there is a secular majority, Palestinian Arabs, soldiers who have been detained for excessive periods of time without being brought before a judge, and the protection of full parenthood rights for those in same sex couples.  In sum, up and down the country, the courts protect the same basic rights for all.   When the Supreme Court intervenes, it does so by way of analysis of the individual decision or legislation alongside Israel’s constitutional norms.  This is by no means an easy process in Israel which does not have a stand-alone written constitution, but it does have a Declaration of Independence and the thirteen Basic Laws which can only be changed with a super majority in the Knesset. To the extent there is unhappiness with certain decisions, the answer lies either in detailed legal debate or the adoption of a full written constitution or amendment of the Basic Laws.  It must not involve a wrecking ball to the pillars of the rule of law itself.

It is somewhat serendipitous then that this debate has coincided with the reading in synagogue of Parsha Mishpatim (the laws).   Jews, both orthodox and unorthodox alike rightly take considerable pride in the sophistication of the exposition of the basic principles of the rule of law in the Torah.   We are told in Exodus 23.2; “You shall not follow the many to do harm, and you shall not bear false witness in a dispute to go askew, to tilt in support of the many.”   This single verse, together with its somewhat difficult language in the Hebrew, has given rise to more commentary than most.   If nothing else, Jews certainly love a good debate.  Nevertheless, ever since the commentary of Rashi who lived nine hundred years ago in Northern France in Troyes, there has been something of a consensus that this verse tells us that ensuring justice and the avoidance of doing harm, sit permanently above the wishes of the majority.   Again and again during the endless Brexit debate, we were reminded that the majority had voted for Brexit.  Likewise in Israel Netanyahu has stressed the importance of majority rule.  This must be met and answered.   In a constitutional democracy, those who vote in an election do not vote for an end to the rule of law. They vote for a government who will govern under the rule of law. The majority is powerful, but as we are reminded in the Torah, it is not all powerful.   This constraint is amongst the most important commands in all our laws and must not be swept away by this tide of populism.

In the research for my book, BURGENLAND, I became quite fascinated by the godfather of populism, the politician who practically invented the rulebook – the charismatic and overtly anti-Semitic mayor of Vienna Karl Lueger or ‘handsome Karl’ as he was known.   He understood instinctively the democratic paradox, namely that it could be good to be hated.  In order to be loved, it did no harm to be hated too.   In fact, it was beneficial to make enemies because then the core political fanbase knew what you stood for, or rather against and supported you all the more.   For Lueger it was a diabolic alliance between socialists, bankers and Jews.   According to Lueger these all stood in alliance and worked to ensure that the ordinary Viennese would not thrive or succeed.  Lueger, however, assured all that he was up to the task and would do whatever it took.   Every populist politician since then has followed the same basic principle, namely to define your enemies in a way that appeals to your voters.   For Netanyahu, the enemy is a powerful liberal elite in league with out of touch ‘lefties’,  the judiciary and elements of the mainstream media.   He does this in order to give cover to pass legislation that would not be acceptable to many without this clear threat.

The time has come whether from a religious, secular, legal or humanitarian viewpoint for ordinary decent minded people to reject this naked form of populism.  Israel will not cease to be a democracy overnight if these reforms are passed.  It will be weakened, however, and needlessly so.    The existence of an independent judiciary able to review the executive without fear or restraint is a central marker of democracy in all respected league table measurements.  As Lord Atkin has shown us, dissent is a powerful weapon and we should not be afraid to use it.

© David Joseph