On March 27, Israeli Prime Minister Benjamin Netanyahu agreed to pause a divisive plan to overhaul the judicial system in Israel, until the next Parliament session, after widespread unrest. As unprecedented strikes gripped Israel, Netanyahu said he was postponing voting on the judicial overhaul to allow time to reach a consensus. The judicial overhaul plan had targeted the corruption charges faced by Netanyahu, in the wake of Supreme Court orders, which brought him down, before he got re-elected.
He said, "I will turn every stone in order to find a solution." Yet he was defiant, as he maintained that "the overhaul was still needed. A large majority of the public today recognizes the necessity of democratic reform in the judicial system," he said.
The immediate trigger for mass protests breaking out on March 26 was a spontaneous outburst of anger after Netanyahu abruptly fired his defence minister for challenging the Israeli leader's judicial overhaul plan.
Some of the proposed judicial reforms are highly controversial. These include changing the appointment process of judges. The Netanyahu government's proposed provisions would have given the Justice Minister more power in the appointment process of judges, which was criticized as a move to politicize the judiciary. Another proposal was to limit the tenure of Supreme Court justices to 10 years, which is seen as an attempt to limit the independence of the judiciary.
Another proposal in the bill would have allowed the Knesset to override decisions made by the Supreme Court, which was the red rag. Parliament becoming the final port of call is unheard of, in any democratic polity.
Foreign Affairs magazine said, "After winning an unexpectedly large electoral victory in November 2022, Benjamin Netanyahu went on to form the most right-wing government in Israel’s history. Its ultranationalist and ultra-Orthodox members don’t agree on everything, but they are united on one objective: weakening Israel’s judiciary and strengthening government control over both the courts and the civil service." And mind you, Israel, like the United Kingdom, too has no written Constitution.
The principle of judicial review that Netanyahu was aiming to strike down is firmly entrenched in democracies the world over.
On May 28, 1788, Alexander Hamilton, one of America's founding fathers, famously wrote under the pseudonym Publius, "The judiciary has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.
"If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection…."
Fifteen years later, in February 1803, in a landmark case in United States law and constitutional history -- Marbury v. Madison -- the US Supreme Court established the principle of judicial review, which gives federal courts the power to strike down laws and other government actions that are deemed to be unconstitutional.
The court's reasoning in Marbury v. Madison rested on the principle that the Constitution is the supreme law of the land, and that any law or government action that violates its provisions is void. This principle has been a cornerstone of American constitutional law ever since, and even in other democratic polities, playing a key role in shaping the balance of power among the three branches of government.
It is fascinating to follow what is going on in Israel.
We had our own Indian version on June 26, 1975, when an internal emergency was declared by PM Indira Gandhi, with the suspension of fundamental rights of citizens, including the 'right to life'. Officially issued by President Fakhruddin Ali Ahmed under Article 352 of the Constitution because of prevailing "internal disturbance", the Emergency was in effect till its withdrawal on March 21, 1977.
There were no mass protests in India then akin to those in Israel today. The Israeli population is over nine million and around eight to ten percent of them have been out on the roads. Moral support is given by almost the ‘entire rest’, says Israel’s 'Hayom' newspaper, distributed for free, with a 31% weekly readership.
Remember the call of Jayaprakash Narayan in September 1975 when he urged the police to disobey orders that their conscience told them were improper. He also warned, “For the present, the call is on Gandhian lines and should not be mistaken for a call for rebellion. But a stage will come, when I will call for total rebellion.”
In Israel, it is happening. There is open non-cooperation of the ‘silent’ kind from the armed forces, students, doctors and nurses and even diplomats (for the first time).
Democracies of the world, including India, have a lot to learn from this Israeli experiment and experience.
(The author is a practising advocate in the Madras High Court. Views are personal.)