American law professor Kim Lane Scheppele—a regular critic of Hungary and Poland—has recently taken on another opponent: Israel. She has recently posted the following tweet: ‘Hungary and Poland provide model for Israel’s assault on judiciary.’ It should be noted that Scheppele worked for the Hungarian Constitutional Court during the Socialist Horn government as a researcher and as an expert for the Hungarian parliament’s constitution-drafting body. Scheppele was also co-director of the CEU’s Department of Gender Studies.
Being an unrelenting critic of the conservative Hungarian government,
her work mirrors her desire to contribute to the downfall of the Orbán administration
through the negative framing of Hungarian government policy. For example, in January 2019, Kim Lane Scheppele was asked by Népszava how in her view the nature of the Orbán system can be defined. According to her, there are a lot of interesting definitions, among those a ‘mafia state’ and a ‘competing authoritarian regime’ both might be appropriate. According to her, there is a constitutional autocracy in Hungary, because the system is authoritarian by nature, but at the same time everything is done constitutionally—on paper.
In April 2020, in an interview with HVG entitled ‘Disguises of the Fallen Orbáns, Dictatorship of Hungary’ when asked why she thought Viktor Orbán needed the COVID authorisation law, Scheppele answered: ‘Orbán wants to secure his power for the time when the epidemic turns into a disaster. When it is revealed how much he has neglected the healthcare system and the people, including his own fellows in his party, there might be a revolt against him. This is how he thinks ahead: there will be no early elections, which would deprive him of the two-thirds; it allows him to rule the country without the parliament if he deems it necessary; and he formulated the authorisation so broadly that it does not only apply to the virus, but to everything that you may find yourself facing.’ The statements cited above are just a few examples of the series of accusations levelled against Hungarian conservative politics that characterise Scheppele’s work in general.
But can her claims stand up to serious scrutiny? As a reminder: for the 15th week, protests have continued against the judicial reform planned by Israeli Prime Minister Benjamin Netanyahu and his religious–national coalition—despite Netanyahu’s recent announcement that he would postpone discussion of the issue until the next parliamentary session. While few things show better than the continuation of the protests that the real aim is to overthrow Netanyahu, rather than this or that criterion of judicial reform,
it is worth taking a look at the proposed reform to better understand the processes taking place in Israel.
In November last year, Netanyahu’s conservative Likud took the leadership of Israel together with the religious right-wing parties, after four other elections since 2019. Netanyahu has finally secured a stable majority for a judicial reform, a long-standing demand of the Israeli right. In Israel today, the judiciary has grown far more powerful than the legislature and the executive, with the Supreme Court interfering in virtually everything and vetoing important state actions (such as ministerial appointments or infrastructure investments) on the spurious grounds of ‘reasonableness’.
The roots of this can be traced back to two historical moments. The first is that no constitution was written when Israel declared its independence in 1948. There were several reasons for this, but one was precisely that the founding left-wing Prime Minister David Ben-Gurion feared that the Supreme Court would, as in America, impede democratic laws. In 1950, the founder of the state said bluntly: ‘Would we ever accept that [a few] judges should overrule a law that the people want?’ Unfortunately, that is what we see today. Another key moment: in 1986, the Israeli State Attoreny General allowed the Supreme Court to hear a petition by an ordinary citizen who had filed a lawsuit against a government decision, namely the exemption of religious Bible-school youth (yeshiva bochers) from military service. As the case was dismissed, few understood the precedent value of the case, the ‘constitutional revolution’ that had taken place here: from then on, anyone could bring an action against government decisions on any matter.
Meanwhile, it is a fact that most of the members and presidents of the Supreme Court are left-leaning, and this also plays a big role in the selection of judges, as the justices make up a third of the nine-member selection committee; another third is made up of lawyers, who regularly vote along the lines of the Supreme Court. Thus,
the Israeli judiciary is in the hands of an unaccountable, untouchable caste,
which determines its own powers, its own authority—in other words, the rules of the game—, since there is no constitution, and it interprets certain laws as having ‘constitutional force’, thus establishing its own (super)power.
Netanyahu’s reform plan is not even that radical. The—delayed—bill seeks to curb the judiciary’s influence on lawmaking and public policy by limiting the Supreme Court’s power of review, ensuring government control over judicial appointments and restricting the powers of government legal advisers (appointed not by the government, but by the judiciary). If passed, the reform would give the Israeli parliament the power to overrule Supreme Court decisions, to overrule the Supreme Court’s revocation of laws—passed by the Knesset through the vote of more than 50 per cent of the members (61 members)—, to reduce the ability of the courts to judicially review cardinal laws, and to change the composition of the Judicial Selection Committee.
Netanyahu must not retreat any further, as abandoning his right-wing agenda threatens the stability of the coalition.
Judicial reform in Israel is the last salvation of Israeli democracy, the rule of the people.
Kim Lane Scheppele probably understands this very well—hence her recent attacks on Israel.
