A recent demonstration against the judicial reforms.
The discussion of Israeli politics has splashed beyond the borders of Israel to America. Such supporters of Israel as Michael Bloomberg have criticized the proposals as threatening the democratic governance of Israel, echoing the criticism of the minority Israeli Left.
These criticisms are not fully informed of the details of the proposals and their context. For example they repeatedly say that the reforms cancel judicial review of Knesset laws, when in fact they do not cancel it but just make it harder and require the consent of a larger body of judges.
Another ridiculous criticism is that the changes in the appointment of judges will erode judicial independence. However the problem is that in Israel, the judges themselves determine the appointment of all judges. In the US and elsewhere, the judges in fact have absolutely no say in the appointment of new judges. Again the reform will just remove the absolute control that judges have had over the appointment process, but will still include judges among those selecting new jurists.
Many observers who favor the reform suggest that the real opposition is to the
sitting government and not to the content of the reform. The extreme reaction to
ideas that are broadly shared (even by much of the "opposition") and the unwillingness to talk, support this view.S
Zev Lev is the legal counsel of the Movement for Democracy and Governance that has been working on and advocating reform for many years. He answered some questions posed by Yated.
Attorney Lev, there are several questions: Why, actually, do we need a reform in the judicial system? What's wrong with the situation as it is?
The situation now has become unbearable. The public in general — and this even includes those who voted for Lieberman, Gantz and "Yesh Atid" — agrees that a reform in the judicial system is essential. The only question is, what actually is required? The present situation includes two basic problems.
The first one is that since the court declared itself as having the power to nullify laws, even fundamental ones, it has turned itself into the supreme legislator of the State of Israel, even higher than the Knesset itself. The upshot of this is that we have a body which was not chosen, and is not acceptable on the people. In effect, it rules over our very lives, chooses the principles of the country and its laws — much as the situation in Iran or China, where councils of this sort rule over legislation
The second problem is that this 'council' — the judges of the High Court — regulates the appointment of the successors. In this way, the court is slipping away from the Israeli public will, which has become more religious, more national and more Rightist.
Thus, there has arisen a state where the Knesset passes laws of illegal immigration in order to protect the Jewish identity of the country — whereas the High Count has already nullified them four times. The Knesset, including Yair Lapid, passes the Law of Army Service in order to allow for Torah study — while the High Court has invalidated it two times already. This is an untenable situation which demands change.
After all the claims of activism - the High Court has only overturned 22 laws since the establishment of the State, so why the uproar?
There are three points of contention:
1 Nullifying twenty-two laws in the space of 28 years (up until 1995 there was a consensus that the courts cannot nullify laws) is not insignificant. Part of the laws which were cancelled led to political crises (the law of army deferment of yeshiva students) and others leading to other crises (the law of [hasdara] and the law of illegal immigrants.
2 The very power of abolishing laws has created a 'threat' leading to the nullification of many other laws not even in the offing to the point that the attorney general threatens that he will not support them or that they will not pass the test of the High Court. This problem is greater than that of abolishing laws already passed.
3 The most basic problem is that of fundamentals: who is the ruling power of the State? Whose ideologies are running it? Is it the public or a handful of judges above the people?
Even after we have agreed that an act of contention is required, what significance remains for the High Court's criticism of the Knesset laws if these can immediately be annulled after a minimal majority of 61 MK votes? Why not require a greater majority?
Let us start from the point that is prevalent in the world: because Israel does not have a Constitution, there is no true justification to rule out laws by a high court. The reform in fact grants an unprecedented power to a court to rule out laws, and this is in order to allow the Knesset itself to clarify which underlying principles it deems important. Thus, if a future Knesset will seek to impair them, the court will wave a red flag and arouse the public to be aware of the damage.
A larger majority than 61 votes of one Knesset (the one which passed the Reform), which is more important that the majority of the succeeding Knesset, which will seek to overrule the High Courts ruling. This is not justified. But more important is to stand firmly upon the basic principle behind this determination which is that a majority of the Knesset members are worthy and valid beyond the majority in the High Court, and that is why they are empowered to overcome them.
"The present method of appointing judges is most unusual with regards to what is standard throughout the world," says Lev. "According to it, the High Court judges have an automatic veto power over the appointments of new judges to the High Court. Three High Court judges have voted over the whole history of the State as one vote, even though such a consensus apparently violates the law. Since a majority of seven of nine is required to instate a new judge, they can block any appointment which they do not favor (including, for example, the appointment of Professor Ruth Gavisohn on the grounds that "she has her own agenda").
The result is a monolithic court which represents the opinions of a very small portion of the general public (and not of voters for Likud, Shas, Yahadus HaTorah and settlers, for example). And since the High Court has the power to overrule laws, we would receive basic decisions against the national interests. This is why it is important that its judges represent the overall opinions of the population.
According to the present text, the reform suggests that each one of the authorities have three members of the committee (three ministers, three MKs - one from the Opposition, 3 judges). The appointment should stand by a regular majority so that the combination of the government and the Coalition will be able to appoint judges with there being a veto of one against the other. This is uncommon regarding the world situation because throughout most of the Western world the judges are appointed without inclusion of the other judges at all. But this draws us near to that and will assist regarding the composition of the judges of the High Court.
If the power of the majority of the committee appointing judges is given over to the government, the appointment thereof will be political.
True, but 'political' in the good sense of the word, namely, that it will be a product of negotiations between the representatives of the various sectors of the Israeli population. Thus, in the long run, judges will be appointed generally as those reflecting the public opinion."
By what method are judges appointed in the world?
In the modern Western world, judges are appointed to a court by public representatives of the political system. In a study of forty Western leading countries, it turns out that in 25% of them, the government itself appoints the judges. In 25% of them, the legislative body chooses them and in 35%, it is a combination of both. Only in 15% of the countries is there an involvement of the judicial authority itself, excepting India, where there is no significant democracy of veto power among the judges regarding the procedure of appointment.
Today, the High Court can test the reasonableness of a decision of the Knesset laws and even of government decisions, even though it cannot judge the reasonableness of a decision more than any citizen-in-the-street. The significance of testing the reasonableness of government decisions is that the judge's personal opinion overrules that of the ministers (so that, for example, in matters of delivering the bodies of terrorists, demolition of the homes of terrorists etc., the court places itself above the professional level. The court does not have the authority, know-how or tools to receive better decisions than those of the government.
If they invalidate the claim of reasonableness, any minister could do what he wants without any judicial censure?
Of course not. First, illegal decisions will not be recognized. The same goes for decisions arrived at in an irregular way (without hearing both sides or allowing time for hearings). On the other hand, decisions which do not conflict with the law and were arrived in the proper manner but are regarded by the court as non-reasonable, will not be overturned.
It seems that the underlying fundamental of separation of the authorities in the country will be drastically damaged.
No, absolutely. The principle of the separation of the authorities calls for the legislative authority to legislate, and the judicial authority shall judge according to the law. What can be said is that the procedure of nullifying laws by the court negates the principle of the separation of the authorities. The reform will enable the Knesset to override the nullification and thus leave it with its original power of legislation.
