Knesset, effect Judicial Reform and defeat the Rule of Law Mafia
In a democracy, key officials stand for election at relatively short intervals, accountable to the people. Op-ed.
In Israel, the legislature is not sovereign to legislate, and the executive lacks actual control to execute the instructions of the legislature. The judiciary has established itself as superior to all other branches of the government; intimating that it knows better what the country needs than the people and their elected representatives.
Through almost five decades of Israel’s existence, the courts did not have the authority or the jurisdiction to invalidate a law of the Knesset.
In 1995, Aharon Barak, President of the Supreme Court of Israel (1995-2006), decreed that “everything is justiciable,” everything can be done by judges; enabling the Supreme Court to carry out a judicial coup d’état.
Since Barak’s dictum, the authority of the Knesset to promulgate laws has diminished. The justices of the Supreme Court and the Attorney General seized legislative power by abrogating laws and interfering with the legislative process, dictating laws through legal opinions and judgments. They also seized executive power by canceling government decisions, and asserting the power to dictate policies to the government.
Justices became generals deciding what the military could do and how to do it, they became economists examining budgets and spending priorities, they became overlords examining ministers to be allowed in the cabinet or legislators to be allowed in the Knesset, they became chief rabbis examining religious matters and doctrines, etc.
This passes for the rule of law in Israel, but is actually arbitrary decrees by unelected officials.
Israeli judges cannot be appointed or removed by the Knesset. The Judicial Selection Committee was established in 1953 to appoint all judges. The committee was intended to prevent outside political pressure; however, it serves to aid left-wing political dominance.
The Supreme Court consists of 15 justices that are appointed by the Judicial Selection Committee. The committee is composed of nine members: Three Supreme Court Justices (including the President of the Supreme Court), two cabinet ministers (one of them being the Minister of Justice), two Knesset members, and two representatives of the Israel Bar Association.
The influence of the Supreme Court members on the Judicial Selection Committee is essentially absolute: although they constitute only a third of the committee, they are the only stable group, while the other members change frequently. The justices further dominate the committee through an alliance with the representatives of the Israeli Bar Association. The three Justices and the two attorneys from the Israeli Bar constitute a majority. And the three justices exert veto power over Supreme Court appointments.
The Supreme Court’s control over the Attorney General of Israel is extensive. Every decision of the Attorney General is subject to “judicial review”, including whether or not to prosecute a public figure.
The Attorney General cannot be appointed or removed by the executive branch or the Knesset. The appointment is made by a commission of five members: a retired justice of the Supreme Court, a former justice minister or attorney general, a Knesset member chosen by the Constitutional Affairs Committee of the Knesset, an attorney chosen by the national council of the Israel Bar Association, and a legal expert chosen by the heads of the university law schools in Israel. It is customary that the selection for the position is brought to the government, which invariably approves the appointment.
In 1993, the Supreme Court made the “Pinchasi” ruling: Government ministers must resign if the Attorney General indicts them. Thus transforming the Attorney General from the government’s legal advisor into the overlord of elected leaders.
Law should govern a nation, as opposed to arbitrary decisions of officials. Since power tends to corrupt, democracies limit the powers of elected officials; subjecting them to stand for election on a regular basis. Voters can replace an elected official that fails to meet expectations.
Power also corrupts unelected officials just as much as it corrupts elected ones; however, voters have no similar authority over unelected officials who fail them. The public did not appoint them, and they owe it no account for their behavior.
In a past address to the Kohelet Forum, opposition leader Yair Lapid said, “I have opposed, and I still oppose, judicial activism of the sort introduced by Justice Aharon Barak. I don’t think it is right that everything is justiciable. I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as the judgment of ‘the reasonable person.’ That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal code. It’s not right in my mind that the separation of powers, the sacrosanct foundation of the democratic method, should be breached by one branch of government placing itself above the others.”
Moshe Ya’alon, former defense minister and former IDF chief of General Staff that lost his reelection to the Knesset and transformed himself to a protest agitator, said in 2009: “Today there are forces, call them the elites, who are influencing the discourse in Israel in a distorted way. It’s manipulative and misleading to the point where we need to be very worried today. I am still very worried. They have a lot of power. They have influence, if you like, on the prime minister. There’s a situation today where we have power centers with authority and no responsibility…. This isn’t democracy. The wealthy have become such a force. The media is a force like this. The Supreme Court is a force like this.”
The judicial reform proposed by Deputy Prime Minister and Minister of Justice Yariv Levin and the Chair of the Knesset's Constitution, Law and Justice Committee, Simcha Rothman, aims to curb the judiciary’s power over lawmaking and public policy: prohibiting the court from ruling on the constitutionality of Basic Laws, legislating against the concept of ‘reasonableness’ that would preclude the courts from hearing petitions or appeals against governmental decisions on the basis that such decisions are ‘unreasonable’, and requiring a full bench of Supreme Court justices to rule against the legality of regular legislation passed by the Knesset. Essentially, it would overturn the judicial decree that “everything is justiciable.”
Moreover, the reform would grant the Knesset the power to override Supreme Court rulings by a full majority; limiting the ability of the court to become overlords: deciding what the military could do and how to do it, examining budgets and spending priorities, deciding ministers to be allowed in the cabinet or legislators to be allowed in the Knesset, ruling on religious matters and doctrines, etc.
Furthermore, the reform would limit the authority of the Attorney General and other government legal advisors, and change the makeup of the Judicial Selection Committee so that a majority of its members are appointed by the government; granting the government and the Knesset control over judicial appointments.
Additional steps are planned by Levin, and the ruling government coalition, for legal advisors to government ministries to be appointed and dismissed by the ministers, making their legal advice a recommendation rather than binding on the ministers; thereby, making legal advisors subordinate directly to the ministers rather than to the Justice Ministry’s professional oversight.
Israel’s Basic Law: Knesset defines the Knesset as the sovereign. That is because the public elects its members in national elections. Members of Knesset in turn, elect the government as the executive arm of the people’s will. In democracies, the parliament legislates laws; the executive implements policies in accordance with the law and the mandate it receives from the voting public; the judicial branch interprets laws.
In a democracy, key officials stand for election at relatively short intervals and thus are accountable to the people. A judiciary that freely overrides the decisions of those officials is despotic. As Abraham Lincoln stated, “if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.”
It is imperative for the Knesset to determine the matters that courts are empowered to consider, and the disputes that the courts have the authority to resolve. They should not be policy upon vital matters affecting the nation, such that by their nature should be decided by the political (legislative and executive) branches of the government: defense, foreign policy, immigration, governmental spending, public security, etc.
If Israel is to maintain its democracy, its elected officials must effect judicial reform, defeat the legal fraternity and restore to the Knesset the sole power to legislate laws.
Dr. Sheyin-Stevens is a Registered Patent Attorney based in Florida, USA. He earned his Doctorate in Law from the University of Miami.
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