GETTING JUDICIAL REFORM DONE
By Yonoson Rosenblum | FEBRUARY 14, 2023
The current Israeli legal system is almost entirely the creation of one man, Aharon Barak
I would bet that not one in ten of those tens of thousands of Israelis who have taken to the streets in recent weeks to protest Justice Minister Yariv Levin's proposed judicial reforms has much knowledge of the content of those reforms and why they were deemed necessary by their drafters. And that is even more true of foreign dignitaries, from President Biden to French president Emmanuel Macron, who have urged Prime Minister Binyamin Netanyahu to go slow on judicial reform.
No high court in the world has arrogated to itself anything like the power that the Israeli High Court claims. It functions as a super-ombudsman over the government, and at times as a super-legislature. Nearly thirty years ago, Maariv editor Shmuel Schnitzer wrote of the Court, "Elections have become a mere formality. Learned men of elevated principles have emptied democracy of any meaning."
The "constitutional revolution" that Justice Aharon Barak declared in 1992, said former minister and Israel Prize laureate in law Amnon Rubenstein, caused Israel's High Court to be viewed as the most activist supreme court in the world: "[I]n many respects, the High Court under Barak has become an alternate government."
Rubenstein, incidentally, was a member of Meretz.
The High Court — usually in the form of three- or five-judge panels — exercises original jurisdiction over thousands of challenges to government actions per year. Those cases typically arrive on the High Court's desk with no lower court proceedings or fact-finding. And that does not even include the many rulings of the attorney general, acting as the High Court's eyes and ears in the government, to prevent government actions before they can even be challenged.
The US Supreme Court, by contrast, hears argument in 100 to 150 cases a year, and only a fraction of those involve challenges to government action.
CRUCIAL TO ANY understanding of the current Israeli legal system is recognition that it is almost entirely the creation of one man, Aharon Barak, who served on the Court from 1977 until his mandatory retirement in 2006, and as Court president from 1995 to 2006. Thus, the current reform proposals are far from radical departures, but rather an effort to return the High Court to its role over the first half of Israel's existence.
Barak launched his "constitutional revolution" by abandoning traditional notions of standing, which limited challenges to government action to those parties who can show themselves to have suffered actual harm as a consequence of those decisions. Thus virtually every government action became subject to challenge before the Court, acting as the High Court for Justice (BaGaTz). At the same time, Barak dispensed with all restrictions on the justiciable claims before the High Court. No area of government action — even (theoretically) troop movements in wartime — was inherently beyond the Barak Court's discretion.
There is currently no parallel in Israel to the "political question" doctrine of the United States Supreme Court, which allots certain government decisions, particularly those involving political choices between competing values, to the elected branches. As an example, during a hearing on the supervisor of traffic's decision to close Jerusalem's Bar-Ilan Street during times for davening on Shabbos, Barak asked what had changed from the previous government's decision not to close the street. What had changed, obviously, was the composition of the government and the values of its constituent parties.
In the United States, that would have been the end of the matter. That's democracy. But not under Court President Barak, who proceeded to order the establishment of a national commission on the subject of Shabbos road closings — something not previously thought to be the role of judiciary, which is traditionally limited to the case before it.
Or to take a more recent case from the American context, compare the US Supreme Court's jurisprudence in Dobbs, which overruled Roe v. Wade. Though there were those who accused the majority justices of imposing their own anti-abortion values, the charge was unfounded. The opinions of the justices about the right or wrong of abortion did not enter their decision. Their inquiry was not: Is abortion moral or not? Rather, it was: Does the US Constitution grant a right to abortion?
The majority of justices concluded that it did not. But they did no more than consign the decision about whether and to what degree abortion should be limited to the political branches in each state. Theirs is a jurisprudence of judicial restraint by leaving the ultimate resolution of moral issues to the citizenry through their elected representatives.
IT WAS BARAK who declared that the passage of two Basic Laws in 1992 — one on Human Dignity and Liberty and the other on Freedom of Employment — furnished the Court with "non-conventional weapons," i.e., the power to strike down Knesset legislation. And in the 1995 Mizrahi case, the High Court did so for the first time.
But, as Judge Michael Cheshin argued in his stirring dissent in Mizrahi, nothing in the hasty enactment and limited debate of the 1992 Basic Laws was consistent with the great fanfare that goes with the declaration of a constitution. One of the Basic Laws passed with the support of only 23 out of 120 MKS and the other by a vote of 32-21, i.e., with less than half the Knesset even voting.
Moreover, the primary sponsors of the two Basic Laws explicitly eschewed any intention to arm the Court with the power to strike down statutes. And section 10 of both laws provided that their enactment would not affect any existing statutes. Former Court president Moshe Landau called upon the Knesset to do its duty, in the wake of Barak's constitutional revolution, and explicitly remove the power from the Court to nullify Knesset legislation.
Barak, in any event, was never greatly concerned with the intentions of MKs, preferring to focus on the "objective" meaning of the statute, by which, ironically, he meant the judge's subjective opinion of what the statute should have said. Judge Richard Posner, one of America's preeminent legal theorists, writes that Barak's interpretation of statutes in the context of judge's personal value system opens up a "vast realm for judicial discretion."
In any event, the proposed reforms recognize for the first time a limited power in the Court to overturn statutes, as long as that ruling is joined by 12 of the Court's 15 judges, That power, however, does not extend to Basic Laws. That qualification was necessitated by the Court's two-step of first declaring the Basic Laws an embryonic constitution, justifying judicial review of statutes in light of the Basic Laws, followed by a second, and self-contradictory, step of claiming for the Court the authority to review and strike down even Basic Laws — effectively ruling that the "constitution" is unconstitutional.
Another of Barak's innovations without a shred of statutory warrant was his transformation of the Office of the Attorney General from serving as the government's legal advisor and representative to becoming its legal master. If the attorney general disapproves of any government action and refuses to represent it in court, the matter is closed, and the same is true of all the subordinate legal advisors to the respective ministries, who report to the attorney general. This system is without parallel in the world.
Its failures were amply on display recently when Attorney General Gali Baharav-Miara ordered Prime Minister Binyamin Netanyahu not to do anything to advance the judicial reforms, as the fact that he is currently on trial creates a conflict of interest for him. Actually, it is Baharav-Miara who has the much larger conflict of interests, since the proposed reforms would strip her office of many of its powers. As far as Netanyahu is concerned personally, he would be better served by doing nothing to rile the judicial branch, which will decide his case.
In any event, the effort to cut up the prime minister's job into pieces, some of which he can perform and others with which he cannot involve himself, is futile. Does that mean, for instance, that he cannot explain or defend the proposed reforms when he meets with foreign officials? That he can't vote for them?
There is only one area touched on in the proposed reforms that does not deal with an innovation of Barak: Israel's unique form of judicial selection, which places three sitting High Court judges on the nine-member selection committee, along with two members of the bar association, who are generally attuned to please the judges. That is enough to guarantee the High Court judges effective veto power over new appointments, as long as they vote as a bloc, which they always have.
But even here, Barak's jurisprudence made judicial selection a much more crucial issue. In the pre-Barak period, when the High Court confined itself to traditional legal materials, such as the interpretation of statutes, or the development of common law doctrines in contracts and torts, selection was less important. But once Barak completely blurred the lines between law and morality, equating the former with the latter, and thus making the judge's ideology central, the judges' control over the selection process led, in the words of the late Professor Ruth Gavison, to the creation of a "self-perpetuating cult."
IF THE LEGAL REFORMS are so badly needed and basically designed to bring Israel more in tune with other democratic nations and its own pre-1992 legal system, why have they generated such hysteria? Even Yair Lapid, who hopes to ride the wave of protests back to the prime minister's seat, admits that there is something unbalanced about the degree of power the judiciary has seized for itself.
Ran Nizri, a deputy attorney general for 11 years, was quoted recently to the effect that the judicial system is in need of "substantial improvements" and "deserves" much of the criticism being leveled at it. Though he believes that the proposed reforms go too far, says Nizri, "The idea that nothing in the legal system requires change is no less dangerous that the government's radical reforms." And yet that was precisely the response of Barak and his successors to all criticism over the years — a dismissive wave of the hand and a call to extirpate the unwelcome idea in its infancy.
In large part, the demonstrations against the reforms are a rearguard action against the results not only of the last election, but against Menachem Begin's victory in 1977, writes Ben-Dror Yemini in Yediot Aharanot. Begin's victory shattered the control of the Ashkenazi founders and their offspring over the main centers of power in Israel.
There are essentially five such centers: the Knesset, the IDF, the economic sphere, the government legal system, and the media. The Knesset has been in the control of the center-right for most of the past 45 years. In the IDF, the elite combat units are no longer dominated by products of the kibbutzim, but by the national religious community. And the economy has been freed from its highly centralized shackles and the domination of the Histadrut labor federation. Once new immigrant parents who sent their children to religious schools were denied Histadrut work cards and faced starvation. That situation is no longer.
Only the High Court remains the domain of the old Ashkenazi elites. Not by accident have the Sephardi judges on the Supreme Court been few and far between, no more than one or two at a time, and until very recently, the number of religious judges was limited to one at a time. Though the dominance of the old Left in the media has weakened, with the proliferation of channels and the advent of the free paper Yisrael Hayom, the media remained throughout Aharon Barak's term a faithful cheerleader, ever ready to credit his claim that criticisms of the Court were attacks on "the rule of law" and not just the rule of judges.
AFTER THIRTY YEARS of being told "go spin your propellers" (as the late prime minister Yitzchak Rabin told opponents of the Oslo Accords, after his government purchased the two votes needed for the Accords, in the form of deputy ministerships for two MKs elected on right-wing slates), proponents of judicial reform are little inclined to stop the reform process in its tracks. And that is especially so, as most of those demonstrating against the reforms have labeled them as representing the destruction of Israeli democracy, and failed to acknowledge any faults in the current system. Calls to take the process out of the Knesset are rightly perceived as a means of talking them to death.
Nevertheless, MK Simcha Rothman, chairman of the Knesset Constitution, Law, and Justice Committee, has been seeking input across a wide spectrum in committee hearings on the proposed law, including from figures like former justice minister Professor Daniel Friedmann, who is both a critic of the Court and a supporter of a slower reform process. Professor Moshe Koppel, founder and chairman of the Kohelet Policy Forum, which is widely seen as an important influence on the reform proposals, published a lengthy article last week in which he mentioned a number of ways the current proposals could be modulated.
An accompanying Basic Law, anchoring the fundamental rights necessary for a free and open democracy — freedom of speech, freedom of the press, freedom of assembly, freedom of petition, and freedom of conscience — might go some way to lowering the heat.
And finally, the religious parties and politicians should stop vying with each other for attention by introducing laws and making statements that give any credence whatsoever to the notion that they seek to turn Israel into a theocracy. For one thing, Prime Minister Netanyahu and the Likud party will not allow any such laws to pass. And second, to the extent that the secular population views the High Court as the only thing standing between them and Iran, they will violently resist anything regarded as reducing the power of the Court. —