Opposition Party’s Judicial Reform Matches Levin/Rothman and then Some
A short while ago, after Prime Minister Benjamin Netanyahu had suspended the coalition’s judicial reform which was ready to be passed by the Knesset with a 60+ vote majority, Constitution Chairman MK Simcha Rothman (Religious Zionism) made the rounds in many news outlets and promised that, as far as he was concerned, he would have no problem adopting the judicial reform proposed by former Justice Minister Gideon Saar (New Hope).
Because now-MK Saar is one of the leaders of the anti-reform movement and has accused Rothman and Justice Minister Yariv Levin of plotting to terminate Israel’s democracy, I checked out New Hope’s website, the section titled, “Saar’s plan to correct the judicial system.” Mind you, this is not the page you will get nowadays when you look for Saar’s plan on his party’s website, it has been replaced by a section titled, “Hope for the correction of the judicial system. Fix – don’t destroy,” and offers only six items, compared to the original eight. But the page with the pre-24th Knesset agenda was not deleted, so, allow me to present opposition leader MK Gideon Saar’s plan for judicial reform:
Saar’s plan to correct the judicial system
“An independent justice system is in fact the last bastion of human freedom these days” (Menachem Begin, 1951). Indeed, an independent judicial system is a basic condition for the guarantees offered by a democratic state. At the same time, in recent decades there has been a growing trend of overusing the power of the judicial system, which has led to a disturbance of the balance among the branches of government in a democracy, causing a steep decline in the public’s trust in the judicial system.
A comprehensive plan is therefore required to restore the balance among the various systems, with an emphasis on adding checks and balances to the judicial system, which would strengthen Israeli democracy, the rule of law, and the public’s trust, which is a foundational pillar in a democratic country, in the judicial system, and law enforcement.
1. Basic Law: Legislation
Passing Basic Law: Legislation, which includes an “override clause.”
The way the Knesset passes laws and the powers of the judiciary in all matters related to legislation must be regulated clearly. It is inconceivable that after more than 70 years, there is no constitutional regulation of the procedure for passing laws and foundational (constitutional – DI) laws.
Judicial review of legislation is accepted in the democratic world; however, it is extremely extraordinary. Therefore, it must be established that only the Supreme Court, and only on grounds to be defined, would be allowed to invalidate primary Knesset legislation. At the same time, the Knesset will enact an override clause, according to which the final word on legislative issues would come from the legislative branch, and the Knesset would be able, with a majority defined by law, to prevail over the ruling of the High Court of Justice.
2. Splitting the role of the Attorney General
Splitting the position of Attorney General and transferring prosecution powers to the State Attorney.
The Attorney General model in Israel is the only one of its kind in the world. It gives a non-elected person extreme power. Through the AG’s instructions, the entire public system is in effect subordinate to him or her: government ministries, local municipalities, statutory authorities, government-owned companies, statutory corporations, etc. His or her position is binding to all state bodies regarding the interpretation of the law, and he or she constitutes a monopoly in everything related to the representation of the state’s positions before the courts.
Legal scholar and former politician Prof. Amnon Rubinstein said, in a 2009 interview: “I once said that the Attorney General in Israel is comparable to Louis XIV, because there is no limit to his authority, and he himself determines the limits of his authority. But then I remembered that Louis XIV had a council of nobles, with whom he would occasionally consult. The AG doesn’t even have that.”
Furthermore, the role of the Attorney General embodies an inherent conflict of interest: on the one hand, he or she is a key partner in the government’s work. He or she furnishes the ministers with legal opinions on a regular basis on how they should interpret the law, and how they must manage the affairs of their ministries and their policies. On the other hand, he or she also heads the general prosecution and hence decides on issues of investigation and prosecution of the very political echelon he or she counsels, including the prime minister, ministers, and members of the Knesset.
The institution of the Attorney General must be split by transferring the powers of the head of the general prosecution to the state attorney and leaving the powers of consultation and representation in the hands of a chief legal counsel. This step would strengthen the independence of the legal counsel and strengthen democracy.
3. Abolition of the attorney general’s monopoly on legal representation
Today, in cases where the Attorney General does not agree with government ministers on which position should be presented to the court, the ministers are left without legal representation that truly reflects their position.
This monopoly on representation must be abolished and government ministers should be allowed, in cases where the Attorney General refuses to represent their position, to receive different legal representation in addition to the position of the Attorney General.
4. Public hearings for Supreme Court candidates
The judicial authority of the court has been increasing in recent years and with it the extent of the influence of the judges of the Supreme Court on shaping the character of the State of Israel.
The development of the concept of broad interpretation, which sometimes overrides the written instructions of the law, made the judges’ worldview an important element that must be taken into account in the selection process, a process that should be carried out with maximum transparency.
The members of the Committee for the Appointment of Judges, as well as the public, should be allowed to learn about the basic ideas of the candidates, including their positions regarding fundamental questions that the court deals with, such as their interpretation of the existing basic laws, their view on the separation of powers, their position regarding the need for a proper balance between values, and more.
5. Restricting the reasonableness cause
The reasonableness cause, which is anchored only in the rulings of the Supreme Court, has become over the years a back door for applying judicial bias to the review of decisions that are at the core of the actions of elected officials. According to this reasoning, the judges are the ones who determine whether an action or decision of an elected official is reasonable or not. In doing so, the judges place their judgment and their assortment of values above the values of individuals who were elected by the public.
The reasoning behind the judicial review of the law must be regulated in legislation, in a way that reduces the application of reasonableness by judges, making it exclusively the domain of elected officials.
6. Promotion of a program to enhance the rights of detainees, suspects, and accused persons
It is impossible to exaggerate the power of law enforcement authorities over the individual in our country.
The authority to exercise governmental power is essential for the administration of justice, but, nevertheless, the exercise of power must be under a comprehensive legal umbrella that defines and strengthens the rights of suspects, detainees, or the accused.
In recent years we have witnessed a growing erosion of the presumption of innocence. There is often a violation of the rights of detainees, suspects, and the accused, and they find themselves helpless in the face of the powerful system.
It often seems that law enforcement authorities arrogate to themselves powers that were not given to them, to increase the pressure on suspects and get them to confess to acts that they did not necessarily commit. These violations lead in the best case to damaging their good name, and in the worst case even to false convictions.
A law on the rights of suspects, detainees, and accused persons must be enacted, which will enhance their rights and regulate, among other things, the following issues: photographing suspects, powers of search and seizure of mobile devices, detention conditions of detainees, rules for conducting an investigation, prohibition of the use of evidence that was acquired illegally (fruit of the poisoned tree – DI), and more.
7. Enhancing the monitoring of the state attorney’s office and the police prosecution
Another necessary step to protect the individual against the possibility of abuse of governmental power is the effective supervision of the prosecuting authorities.
Such an attempt was supposedly made in the past, with the enactment in 2016 of the Public Complaints Commission on State Representatives in Courts Act. Unfortunately, due to pressure and a strike by the attorney’s office staff, the law has been castrated, and its current version is devoid of effective supervisory powers.
Amendments must be made to the existing law and the complaints commission must become an independent body once again, with investigative powers, and whose recommendations would be given a clear validity. The authority granted to the Commission must include individual audits of citizens’ complaints, the details of which would be kept confidential, as well as public officials’ complaints in cases that indicate a systemic failure.
8. Decriminalization of Israeli law
Changing the classification of offenses of a technical/administrative nature and transferring them from a criminal track to administrative enforcement only.
Criminal law in Israel contains many offenses which in their nature are merely technical and administrative. This situation automatically turns thousands of citizens who violated technical/administrative laws into criminal offenders.
The criminal law, which severely limits individual freedoms, is designed to deal with significant deviations from the law. In addition, it requires a great expenditure of police, prosecution, and court resources, causing prolonged delays of legal proceedings in Israel (insanely prolonged delays, often counted by decades, not years – DI).
Therefore, the application of criminal law should be reduced as much as possible. As part of the decriminalization procedure, screening should be performed for all the offenses that appear under criminal law. Minor offenses or technical-administrative offenses would be removed from the criminal track to the administrative, including violations of business licensing, certain types of planning and construction rules, various economic issues, technical obligations of reporting, etc.
Needless to say, Justice Minister Gideon Saar applied very little of his great plan during his year and a half in office, most notably the plan to split the AG’s office. If anything, he has honed the AG he had appointed as an agent of chaos in the new government.
As plans go, it’s not a complete revamping of Israel’s ailing and tyrannical judicial system. For one thing, it keeps in place the current status of the right of standing, which is unique to Israel alone, whereby one need not show the court how they were harmed by a government law or act, they only have to be able to pay the court expenses. Eliminating the right of standing has offered the High Court of Justice years of encouraging petitions from foreign-funded NGOs that enabled the High Court to redesign everything in Israel in its image.
But you know, if the coalition submitted the above Saar plan as is, with no changes, and the National Camp of which he is a senior partner would vote in favor, this reporter would be deliriously happy.
So, what are they waiting for?
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