The Guide to Judicial Reform in Israel

 

Introduction

 

In 1995 Judge Aharon Barak, then president of the Supreme Court, announced that a constitutional revolution, a phrase he coined, was taking place in Israel based on his own interpretation of the Basic Laws enacted by the Knesset in 1992 as having the force of a constitution.   This revolution brought about dramatic changes in the form of government in Israel, manifested by a number of unprecedented steps by the Supreme Court and changes in the office of the legal adviser to the government.  Since then the Supreme Court has struck down 22 laws that were enacted by the Knesset (Israeli parliament).  It intervened in decisions of the Israeli security agencies and even invalidated administrative decisions of the Israeli government and its ministers.  All this was done without any legal basis; that is, without the consent of the Knesset, which is solely invested with the power to draft and adopt a constitution.

 

From then until the present day, senior jurists, former and current judges, legal specialists in Israel and around the world, members of the Knesset and ministers from the entire political spectrum have pointed out the need to correct the judicial system in order to restore balance between the three branches of government–legislative, executive, and judicial.

 

Im Tirtzu attaches great importance to the democratic form of government of the State of Israel, the nation-state of the Jewish people. The overarching principle of democracy is the rule of the people through their elected representatives while ensuring checks and balances between the three branches of government and protecting the rights of both the majority and the minorities.  The time has now come to strengthen Israeli democracy by long-overdue reform of its judicial branch.

 

We are pleased to present you with this guide to a full and detailed understanding of the plan for reform of the judicial system in Israel.

 

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“In a democratic government the separation between the branches must be respected.  I am concerned that it will not be possible to maintain a sound government if all the political problems make their way to the courts.”

 

Judge Moshe Landau, of blessed memory, fifth president of the Supreme Court.

Main Points of the Plan

 

Unreasonableness Rationale

 

Current situation: Without any legal basis conferred to them by the Knesset, the Supreme Court judges arrogated to themselves unlimited power to intervene in decisions of the government, its ministers, and the agencies under their authority.  They did this by invoking the rationale that a decision is defective by reason of “extreme unreasonableness.”  Such power is unprecedented anywhere else in the free world.

 

Proposal: Divest the Supreme Court judges of this power.  The authority to critique the judgment of the government, its ministers, and the agencies under their authority will be returned to the Knesset.

 

Changing the Method of Appointing Judges

 

Current situation: In the Judges’ Election Committee, unelected members have a majority.  Of the 9 members of the committee, 5 are judges and lawyers.  A majority of 7 out of 9 is required to appoint judges.  As a result, the 5 judges and lawyers, who vote as a bloc, have a de facto veto that essentially enables them to appoint their own colleagues and replacements according to their own criteria.

 

Proposal: Expand the Judges’ Election Committee to 11 members.  Equal representation will be given to each of the three branches of government: 3 judges, 3 ministers, and 3 members of the Knesset.  Of the 3 members of the Knesset two will be from the coalition (the chairmen of the Knesset Committee and the Constitutional Committee) and one from the opposition (the chairman of the State Comptroller Committee).   In addition, two representatives of the public will be appointed by the Minister of Justice.  A simple majority of 6 out of 11 will be required to appoint judges.  This structure will balance and diversify the pool of judges in the judicial system.

 

Override Clause and Striking Down Basic Laws

 

Current situation: The Supreme Court has struck down 22 laws enacted by the Knesset without the Knesset having established any legal basis for such action.  In addition, the Supreme Court held deliberations on the possibility of annulling Basic Laws.

 

Proposal:

 

 

Appointing Legal Advisers

 

Current situation: The opinions of the legal adviser to the government have become obligatory despite the absence of any legal basis that obligates the government to comply with their opinions.  The legal adviser has in effect become the law itself and as a result has struck a fatal blow to the ability of the government and its ministers to advance the policies for which they were elected.

 

Proposal: The ministers will have the prerogative to appoint the legal advisers in their respective ministries.  These legal advisers will be under the authority of the ministers and not under the authority of the legal adviser to the government.  A legal opinion will not determine legal status and will not obligate the government, but will remain as its name implies–a legal opinion of the adviser.

 

 

Doctrine of Unreasonableness

 

“The principle of unreasonableness…has no place in the panoply of values of the judicial system nor does it have a place in the domains of culture or ethics.”

 

Prof.  Menachem Alon, of blessed memory

Vice President of the Supreme Court

 

Current situation: According to the doctrine of unreasonableness the Supreme Court can invalidate decisions of the elected government, its ministers, or the agencies under their authority, by asserting that the decisions are defective on the grounds of “extreme unreasonableness,” the legality of the decisions notwithstanding.  And who determines what’s unreasonable?  The Supreme Court.

 

What is being proposed?  The reform proposes divesting the judges of the Supreme Court of their self-conferred power to invalidate decisions of the government or its ministers by declaring them defective by reason of “extreme unreasonableness.”  Authority to critique the judgment of the government and its ministers will revert to the elected Knesset.

 

Important to know: In Israel the doctrine of unreasonableness has usurped the principle of legality.  The underpinning of the judicial branch in a democracy is the principle of legality.  The court is restricted to the law and its rulings are accepted by virtue of their reflecting the intent of the legislature.  The purpose of legality is to counter the human tendency of judges to insert their own personal value considerations into their judicial decisions.  The doctrine of unreasonableness defeats this purpose by inserting the personal opinions of judges into their deliberations.  In doing so, the resultant rulings are shaped into a kind of “Supreme Executive Branch.”

 

Debunking the myths: In her speech, Judge Esther Hayut, president of the Supreme Court, claimed that “the next stage, by this logic, may be that the judge has no professional discretion to decide even what a “reasonable doubt” is in order to acquit someone accused of a crime…maybe according to this same logic the judge has no discretion to decide whether a physician or engineer was negligent because he or she failed to act in a reasonable manner.”  This claim is erroneous.  By law the legislators specifically grant authority to the Supreme Court judges to acquit of crimes based on reasonable doubt and to determine what medical or other professional negligence is.  Beyond this specifically granted authority, the judges have no authority by law to block decisions of the government or its ministers simply because they consider a decision to be “unreasonable.”

 

Illustrative Rulings:

 

  1. Some Arab residents of the Palestinian Authority requested permission to enter Israel for a joint memorial ceremony between bereaved Israeli families and Palestinian families on Memorial Day for Israel’s Fallen Soldiers and Victims of Hostile Acts. Minister of Security Liberman refused permission to enter because some of them were close relatives of convicted terrorists. Although the minister’s refusal was not illegal, the Supreme Court found it “unreasonable” and the Palestinian Arabs were allowed to enter.
  2. Minister of Justice Amir Ohana decided to appoint Orly Ben-Ari, then deputy prosecutor of the Central Region, to the post of acting state prosecutor. The legal adviser to the government Avichai Mandelblit opposed the appointment on the grounds that, while not illegal, it “exceeded what was reasonable.” Supreme Court Judge Mazuz, who deliberated on the petition, issued an injunction to delay the appointment.  As a result Ben-Ari withdrew from her agreement to serve in that role.
  3. Prime Minister Benjamin Netanyahu decided to close the office of the Palestinian Authority in the Orient House in East Jerusalem in 1999 at the height of the wave of terror. The claim of petitioners against the decision was that it was unreasonable because it stemmed from electoral considerations at a time of upcoming elections.  Without even any deliberations taking place on the matter, Supreme Court Judge Dorner issued an injunction to delay the governmental decision.
  4. The Ministry of Education oversees the awarding of the Israel Prize, the most prestigious prize in Israel, for outstanding contributions in various domains. The Minister of Education almost always approves the recommendations of the nominating committees.  In the case of Oded Goldreich, a renowned professor of computer science, the Minister of Education Yoav Gallant and his successor Yifat Shasha Biton decided to deny him the Israel Prize because of his long history of supporting boycotts against Israel.  Although there was no legal issue in this matter, the Supreme Court nevertheless ruled that this denial was unreasonable and compelled the Minister of Education to grant him the prize.

 

 

The Committee to Appoint Judges

 

“Whoever heard of such a thing as judges appointing themselves?”

 

Avraham Diskin

Professor Emeritus of Political Science at the Hebrew University

 

 

Current situation: In the Committee to Appoint Judges, unelected members have a majority.  Of the 9 members of the Committee, 3 are sitting justices and 2 are lawyers.  A majority of 7 out of 9 is required to appoint supreme-court justices.  As a result, the 5 justices and lawyers, who are not elected but who vote as a bloc, have a de facto veto that essentially enables them to appoint their own colleagues and successors according to their own criteria.

 

What is being proposed?  We propose expanding the Committee to Appoint Judges to 11 members.  Equal representation will be given to each of the three branches of government: 3 justices, 3 ministers, and 3 members of the Knesset.  Of the 3 members of the Knesset 2 will be from the coalition (the chairmen of the Knesset Committee and the Constitutional Committee) and 1 from the opposition (the chairman of the State Comptroller Committee).   In addition, 2 representatives of the public will be appointed by the Minister of Justice.  A simple majority of 6 out of 11 will be required to appoint judges.  This structure will balance and diversify the pool of judges in the judicial system.

 

Important to know: In the Democracy Index of The Economist a comparison of the Committee to Appoint Judges in Israel with those of the 30 leading countries of the world shows that only in India and Great Britain do judges have a veto in the selection of new judges.   In all the rest of the developed countries of the world elected representatives have a majority in these committees.  Judges are still consulted and even represented on these committees to elect judges but do not on their own have the ability to thwart an appointment.

 

Debunking the myths: In her speech, Supreme Court President Esther Hayut said, “No faction in the committee has an ‘automatic’ majority to choose its preferred candidate… Furthermore, the claim that the committee’s selection process is carried out behind closed doors and without following a protocol is also baseless…” We wish that were true. The three justices on the Committee representing the Supreme Court vote unanimously.  The two lawyers representing the Bar Association almost always vote with the justices because it’s obviously in their interest not to antagonize justices before whom they are likely to argue cases. In 2020, 61 judges were appointed by the Committee despite the presence of only 6 of the 9 committee members, the other 3 having boycotted the deliberations. The appointments were nevertheless approved on the basis of the opinion of the legal adviser of the Ministry of Justice, without any legal basis for such action.  Adding insult to injury, within the judicial system there is a secret committee called the Committee of Two, which consists of two retired justices.   They prescreen candidates for the three supreme-court justices who sit on the appointments committee according to secret criteria that have never been disclosed. Despite numerous petitions against this practice, the President of the Supreme Court decided to keep the deliberations of this Committee of Two confidential.  Only the summaries of its recommendations are circulated, and only to the members of the Committee to Appoint Judges.

 

Why is Reform Needed?  Requiring a majority of 7 out of 9 members of the Committee to Appoint Judges to appoint new justices gives a de facto veto to the three justices sitting on the Committee who vote as a bloc.  This creates a system of cronyism in which justices appoint only like-minded candidates as new colleagues and successors.  For example, late distinguished Professor Ruth Gavison’s appointment as a supreme-court justice was rejected by Judge Aharon Barak on the grounds that “she has an agenda.”

 

Override Clause and Overturning Basic Laws

 

“The court is not authorized to appoint itself to judge over the reasonableness or unreasonableness of legislative acts of the Knesset.”

 

Zvi Berenson, of blessed memory

Justice of the Supreme Court

 

Current situation: With no legal underpinning the Supreme Court struck down 22 laws that the Knesset enacted since the beginning of the judicial revolution.  In a further unauthorized expansion of its purview, the Supreme Court deliberated on a Basic Law: Israel – the Nation-State of the Jewish People.  Supporting this expansion was Chief Justice Aharon Barak who contended that there was an avenue to annulling basic laws on the grounds that “the political result of the judiciary act of voiding amendments to the constitution should not be to tie the hands of the court.”

 

Why is reform needed?  The Supreme Court has arrogated to itself the authority to strike down laws despite there being no legal basis for such authority.  In so doing, the Court has usurped the role of the legislature by imposing its own value judgments on the will of the voters.  Serious political crises have arisen as a result of the Supreme Court striking down certain laws.  For example, the High Court of Justice struck down the conscription law, which had been enacted after successful negotiations between elected Knesset members.  As a result, this issue remained unresolved and even caused governments to fall.  In another matter, the High Court of Justice struck down 3 successive laws, one after the other, intended to deal with a wave of illegal immigration into Israel.  This interference perpetuated a serious quality-of-life problem in a section of Tel Aviv that made the lives of the citizens there unbearable.

 

What is being proposed?

 

 

Important to know: Israel is the only country in the world in which the court has arrogated to  itself the authority to strike down laws despite there being no legal basis for such authority.  Contrary to fears that the Supreme Court will no longer be able to exercise judicial review of laws, the reform for the first time does provide for the Court to strike down laws under certain conditions.  In fact, the idea of the override clause with a majority of 61 was first put forth by Chief Justice Aharon Barak himself when he suggested adding it to the Basic Law: Freedom of Employment.

 

Debunking the myths: “And what if 61 Knesset members passed a law prohibiting redheads from voting?”  The main argument voiced by the opposition is that the override clause will give unchecked power to elected officials.  On the contrary, the Israeli legislative and executive branches do not have now, nor will they have under provisions of the reform, unchecked power. The Knesset’s term of office is one of the shortest in the world. Unlike judges, elected officials have to campaign for office, are accountable to the voters in every election, and can lose their seats in the Knesset. The opposition’s accusation that unconstrained legislators could infringe minority rights stems from its desire to privilege the will of the judges, whose world view coincides with its own, over the will of the voters, the majority of whom the opposition has lost.  In other words, it’s a ploy to retain power through the judiciary after losing it in the legislature.  The reform proposal provides for the Knesset to confer authority, albeit in defined circumstances as mentioned above, upon the Supreme Court to strike down laws the Knesset itself has enacted.   Such legitimate authority will not encourage the Knesset to overuse the override clause; rather, it will lead to fruitful dialogue between the judiciary and the legislature, with the last word in political and value-based polemics ultimately remaining vested in the voters through their elected representatives.  Overall, the override clause will help restore balance between the three branches of government.

 

Appointing Legal Advisers

 

“I never pretended to dictate directives to the government or to tell it what path to follow…I would be greatly concerned if the justice minister told me that I was placing myself above the government and above the minister…I have no such pretension.”

 

Gideon Hausner, of blessed memory

Former Legal Adviser to the Government

 

Current situation: Despite the absence of any basis in law compelling the government to comply, the opinions of the government’s legal adviser have become binding upon the government through deliberations of commissions and pronouncements of Supreme Court judges.  The legal adviser has in effect become the law itself and this has struck a fatal blow to the ability of the government and its ministers to advance the policies for which they were elected.

 

Why is reform needed?  The State of Israel is the only country in the free world where the opinion of a legal adviser is binding upon the government.  In many cases the government despaired of even trying to implement its decisions simply because it’s legal adviser determined that there was a “judicial impediment.”  In many of these cases the government’s own legal adviser sued it instead of defending it in the Supreme Court while simultaneously prohibiting it from retaining outside defense counsel, thereby depriving the government of legal representation and tying its hands.  Such an absurd state of affairs has no equivalent in the free world.  In Israel the government’s legal adviser has, in effect, become a ruling arm of the Supreme Court embedded within the executive branch.

 

What is being proposed?  Legal opinions of the legal advisers to the government and the ministries will not determine legal status and will not obligate the government or its ministers, but will remain as its name implies–a legal opinion of the adviser and not tantamount to a ruling of the Supreme Court.

 

Important to know: In the Commission of Jurists headed by then High Court Judge Shimon Agranat, which convened in 1962 to deliberate on the matter of the authority of the government’s legal adviser, it was determined that “in general the government will consider the opinion of whomever functions as the “government’s legal adviser” simply as an opinion that reflects existing law.  It follows that the government will decide what action to take in specific cases according to its own judgment.”  This decision was approved by the cabinet when it met in October 1962.

 

Debunking the myths: “We are public servants and not consiglieri of the ruling power…we are obligated to public advocacy and initiative stemming from public trust, and not a reflection of the limited interest of a mere minister or director-general of a ministry (Dina Zilber, former deputy legal adviser, 2018).  A consigliere is a name applied to a legal adviser of a crime family. Currently, the legal advisers in the various ministries are appointed by and answer to the main legal adviser to the government.  The reform proposes granting each minister the prerogative to appoint his or her own ministry’s legal adviser.  A widespread claim is that if the position of legal adviser is changed in this way, their powers will be curtailed.  Until 20 years ago it was accepted that the legal adviser only advised and that his or her opinions were not binding.  With the rise of judicial activism, however, there occurred an eroding away of the executive prerogatives of the ministers, who were effectively subordinated to the centralized legal-adviser system.  This issue deteriorated to the point where in some cases the minister had no one to represent his positions in lawsuits that were brought against his ministry because the legal adviser refused to do so.  Representation of the government’s position was intended to assist the government and ministers to implement their policies.  What was clear to the legal advisers to the government in 1962 must be made clear again today: the adviser only advises.

 

 

 

 

 

 

 

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