Nasso -- A Rare Win against the Government Legal Establishment
by Jonathan Rosenblum
May 22, 2015
No leading democracy has so many aspects of its legal system without parallel in the democratic world as Israel. Yet those very aspects of Israel's system of government that mark it as an outlier among world democracies are paradoxically fiercely defended by the left-wing media as the essence of Israeli democracy and the rule of law. Efforts to bring Israel's government legal system more in line with other Western democracies are routinely derided as blatant attempts to undermine Israel's democracy.
Those howls of anger at any attempted reform have proven enormously effective in cowing those most harmed by Israel's peculiar legal system – its elected representatives and those who vote for them. Part of the problem may be that politicians on the political Right are simply so ignorant of democratic theory or practice around the world that they actually believe the Left's definition of democracy as whatever leaves the most power in the hands of unelected judges and legal bureaucrats and minimizes the power of the elected branches to execute the will of Israel's voters.
That might explain new Finance Minister Moshe Kahlon. But what about Prime Minister Binyamin Netanyahu? Apparently, he just wants to avoid stirring up the hornet's nest of the press against him and his beleaguered spouse.
Ironically, the only voices that have gained a hearing in pointing out Israel's deviation from democratic norms have come not from the Knesset but from legal academics: e.g., Professor Daniel Friedmann during his brief period as justice minister and Professor Ruth Gavison, whom then Court President Aharon Barak fought tooth and nail to keep off of the Court.
Though new justice minister Ayelet Shaked, a non-lawyer, has vowed to reduce the power of the Supreme Court and the government legal establishment, the new coalition guidelines offer scant support for her efforts and she does not even have a majority of the fragile coalition behind her proposals.
OVER THE YEARS, MUCH SPACE has been devoted in this column to the powers of the Israeli Supreme Court as a consequence of the judicial revolution engineered by former court president Aharon Barak. By doing away with traditional legal doctrines of standing (who may bring a claim) and justiciability (what issues may a court decide) that serve to limit judicial power, Barak turned the Israeli Supreme Court into the most powerful in the world.
Armed with a philosophy that "the world is filled with law" and that a legal norm can be enunciated on any issue of policy or government conduct, even where there are no such mundane legal materials as statutes to guide the judge, Barak ensured that the Court's power would be exercised and the Court would become the ultimate arbiter of values in Israel to a degree without parallel in the world.
In Barak's view, the judge's role is to advance the views of the "enlightened public in whose midst he dwells." The views of the hoi polloi of unenlightened voters need little concern the Barakian judge.
To ensure that the power of the Court remains in the hands of similarly enlightened justices, we have Israel's unique system of judicial selection for the Supreme Court, which gives three sitting justices on the nine-person selection committee effective veto power over any potential new colleague not to their liking. Only a minority of the committee is comprised of elected officials, and one of those is from the opposition further neutralizing the input of the elective branches. Reform of this judicial selection process is one of Shaked's priorities.
But no less anomalous than Israel's judicial selection process is the enormous power of the attorney-general, as a recent study by Dr. Aviad Bakshi of the Kohelet Forum makes clear. In the other leading democracies surveyed by Dr. Bakshi – the United States, Canada, Germany, and Britain – the attorney-general is a political appointment and full-fledged member of the executive branch. He or she serves at the pleasure of the president or prime minister, and is traditionally, at least in the U.S., the cabinet member closest to the president. When there is a difference of legal opinion between the head of government and the attorney-general, the former's opinion governs and the latter must either represent that opinion or resign.
The situation in Israel could hardly be more different. The attorney-general is not a political appointment. Nor is he in any way subservient to the executive branch. He is appointed for a six-year term, and the prime minister at the time of his choice has very little say in his selection. If the government falls, and a new one is formed of very different parties, the attorney-general remains until his term ends.
In further contrast to the other major democracies studied, the Israeli attorney-general's legal opinions about government action are fully binding on the government, and he frequently issues orders restricting the government in what it can and cannot do – e.g., in the period leading up to new elections. Should a minister or the prime minister wish to advance a different legal opinion or have his opinion tested in court, it's too bad. He cannot challenge the attorney-general nor can he hire another attorney to represent his legal position.
And this boundless power has no statutory basis. It is entirely a creation of the jurisprudence of the Barak Court which invested the attorney-general with vast discretion over every aspect of government functioning. The attorney-general is not a member of the executive branch, but effectively the Supreme Court's emissary to ensure that the government behaves in a sufficiently enlightened fashion and to immediately spoke its wheels if it gets out of line.
The irony of this peculiar institutional framework is that Israeli citizens have unparalleled access to the Supreme Court sitting as the high court of justice (BaGaTz) to challenge any government action of which they disapprove. Indeed citizens have two bites at the apple. For they are also usually entitled to a pre-BaGaTz hearing by a representative of the attorney-general, and if that official finds the citizen's complain meritorious, he will likely inform the relevant government ministry or agency that he will not defend it before BaGaTz. Only the government itself is not guaranteed an opportunity to have its position represented in Court.
A CASE LAST WEEK involving the Chief Rabbinate nicely captures the absurdity of the current situation. The Chief Rabbinate fined two restaurant owners who advertised on the internet that their establishments were kosher though they were not under the supervision of the Chief Rabbi. The Reform Center for State and Religion then brought a BaGaTz challenging the Chief Rabbinate's exclusive authority over kashrut certification. The petitioners argued that the Chief Rabbinate's exclusive authority violates the Basic Law on Freedom of Occupation or, alternatively, the relevant statute permits a food establishment to say that it is under supervision as long as it does not use the word kosher and makes clear that its supervision is not from the Chief Rabbinate.
The lawyer in the Attorney-General's office assigned to represent the Chief Rabbinate decided that the petitioner's interpretation of the statute was correct, even though it is in contravention of decades of practice, and that she would so represent to BaGaTz. Chief Rabbi Lau petitioned Attorney-General Yehuda Weinstein for permission to attain outside counsel. He was denied.
The hearing on the petition was assigned to a three-justice panel that included two religious justices, Elyakim Rubinstein and Noam Solberg. The "representative" of the Chief Rabbinate had failed to mention in her brief either that the Chief Rabbinate strongly disagreed with the position of the attorney-general or that the Chief Rabbinate's request to hire independent counsel had been denied.
Had Justice Rubinstein not known from press reports that the Chief Rabbinate held a different legal position, he would have been none the wiser on account of the government's attorney. But the government attorney did not succeed in her subterfuge.
And perhaps that is cause of optimism. For once the Court did not accept the rule that the government institutions can only be represented by the attorney-general or his subalterns. The three-justice panel called for a second hearing at which the Chief Rabbinate would be represented by its own legal advisor. That legal advisor is not picked by the Chief Rabbinate either, but there is at least more chance that he will represent the Chief Rabbinate's position faithfully.
And for good measure, Justice Rubinstein indicated some skepticism about the attorney-general's statutory interpretation of the Chief Rabbinate's authority. He told a joke about a restaurant owner who feigned great insult when questioned about the kashrut of his establishment. Indignantly, the owner pointed at the photos hanging on the wall of the Baba Sali and other holy persons. "To tell you the truth," the questioner replied, "I'd feel more comfortable if it were your picture were on the wall and they were eating here."
Related Topics: Israeli Supreme Court
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