Among leading democracies Israel’s legal system is rife with anomalies. Yet precisely those aspects of Israel’s legal system without parallel in any other leading democracy are the ones defended most ferociously by the legal establishment and press for the simple reason that they are profoundly undemocratic. Efforts to bring Israel’s legal system more in line with other Western democracies — and balance powers more evenly between the legislative and judicial branches — are routinely denounced by Israel’s left-wing media as blatant attempts to undermine Israeli democracy.
The 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 accept the Left’s warped definition of democracy — i.e. 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’s pledge to oppose judicial reform. 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: for example Professor Daniel Friedmann during his brief tenure 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. In fact she doesn’t 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 and 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 a court may decide) that serve to limit judicial power Barak turned the Israeli Supreme Court into the most influential high court 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 mundane legal materials such 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 unparalleled in any democracy.
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 guarantee 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 of the Kohelet Policy 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 US 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. 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.
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 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 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-Supreme Court hearing by a representative of the attorney general. If that official finds the citizen’s complaint meritorious he will likely inform the relevant government ministry or agency that he will not defend it before the Supreme Court. 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 restaurant owners represented by the Reform Center for Religion and State then brought a case to the Supreme Court challenging the Chief Rabbinate’s exclusive authority over kashrus certification. The petitioners argued that the Chief Rabbinate’s exclusive authority violates the Basic Law on Freedom of Occupation or alternatively that 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 was in contravention of decades of practice and that she would so represent the case to the Court. Chief Rabbi David 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. Even after the Chief Rabbinate’s opposition to the position being advocated in its name was acknowledged the government attorney had every reason to believe based on current Court precedents that her interpretation of the relevant statute would be binding on the Chief Rabbinate.
But it did not happen. And perhaps that is cause for optimism. For once the Court did not accept the attorney-general’s legal opinion as definitively binding on the government. 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 kashrus 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 your picture were on the wall and they were eating here.” —