Judicial independence: the view from Israel

The Israeli situation offers an interesting case study for inquiring whether courts are ‘friend or foe’. The challenges that arrive at the doorsteps of Israeli courts, ranging from corruption through religious protection, free speech and, of course, a wide range of issues emanating from the prolonged Israeli–Palestinian conflict, place it at the very centre of political debate on a regular basis. It is not only a court seeking to preserve constitutional foundations such as due process and human rights in the context of a prolonged conflict. In addition, from a legal perspective, it has done so against the background of a ‘state of emergency’ in place since Israel was established in 1948; and burdened further by the decision to hear petitions against the military commander of the Occupied Palestinian Territories (OPT) brought by residents of the OPT. Internationally, the Israeli courts, and the Supreme Court in particular, are held in high regard, sometimes viewed as the last defence for Israeli democracy. Domestically, however, the picture is a mixed one, with both sides either routinely ‘disappointed’ in the court, or resigned to see it as an antagonistic force whose powers should be limited. To an extent, the intense public debate concerning judicial independence in Israel suffers from similar misunderstandings and conceptual confusions that plague similar debates elsewhere. Therefore, this chapter will, at times, refer to the theoretical issues that are apparent. Chief among them is the confusion between limiting judicial power and encroaching on judicial independence, which is the focus of section I. This discussion leads into the efforts to distinguish between legitimate and illegitimate limits placed on the courts by the political branches, which are analysed in section II. Section III will then show why this conflation between power and judicial independence, and between legitimate and illegitimate political initiatives, are particularly dangerous for advocates of those who wish to preserve judicial independence, and for a democratic ethos more generally. Section IV then brings the various strands together by attempting to answer the question: ‘are the Israeli courts friend or foe?’ and how the answer to this question should impact the construction of judicial independence in the Israeli context.