The fate of the movement for reform of the Israeli legal system

Even the best causes can be tainted by association with the wrong advocates. That might be the fate of the movement for reform of the Israeli legal system.

Last Tuesday, MK Miki Zohar (Likud), a close ally of Prime Minister Binyamin Netanyahu, introduced a bill in the Knesset that would provide immunity from prosecution for any MK, unless the Knesset votes to lift immunity. Zohar insisted that he was not acting at the behest of the embattled Netanyahu, who pledged during the recent election campaign that he would not introduce any legislation to change the immunity law.

Zohar’s claim, however, was greeted with widespread skepticism. And due to the possibility that the Israeli Supreme Court would find the change to the immunity law defective, it is further rumored that Netanyahu is preparing legislation that would limit the Court’s power to strike down Knesset legislation.

In 2004, when the Knesset immunity statute for MKs was virtually identical to that proposed by Zohar, the Supreme Court ruled that the Knesset’s refusal to remove the immunity of two Knesset members was improper. So suspicions that the Supreme Court would not be stymied by Zohar’s bill alone are well founded.

Ironically, Netanyahu has never been a proponent of reining in the Supreme Court. In a 2012 interview, he boasted that he had stifled all attempts at reform of the legal system, including proposals to limit the authority of the Supreme Court, to change the manner in which Supreme Court justices are chosen, or allowing the Knesset to override Supreme Court decisions striking down Knesset legislation or government decisions.

But the potential linkage between Zohar’s proposed immunity law and efforts to curb the authority of the Israeli Supreme Court plays into the hands of those opposed to such limitations. Defenders of the “judicial revolution,” engineered by former Court president Aharon Barak, inevitably style their defense of the powers of the Court as a commitment to “the rule of law.”

That is easy to do when proposed limitations on the Court’s authority come in the context of Prime Minister Netanyahu’s personal fight for his political life, in light of Attorney General Avichai Mandelblit’s announcement that he intends to indict Netanyahu on three counts of fraud and breach of trust. One of the cardinal definitions of the rule of law is that “no man is above the law.”

And it is not hard to portray Netanyahu’s efforts as designed to create some kind of exemption from the criminal law for himself. As Moshe (Boogie) Yaalon, number two on the Blue and White party list and a former defense minister under Netanyahu, put it: Will the Knesset become a safe haven for lawbreakers?

A group of Israel’s leading attorneys, including a number who have defended high-profile politicians, have announced the formation of a group to save the Supreme Court from right-wing politicians. Dore Klagsbald, who represents Netanyahu patron Sheldon Adelson’s interests in Israel, argued at the first meeting, “It’s inconceivable that because one man has a problem the entire judicial system is going to be changed.” The organizer of the initial conference proclaimed the group to be united by a common fear “that the rule of law and Israel’s liberal democracy are in danger. We feel that the rule of law is dangling on the edge of a precipice.”

Responding to the claim that the electorate’s choice of Netanyahu, even after the announcement of the pending indictments, constitutes a popular veto of the indictments, Mandelblit, who formerly served as Netanyahu’s cabinet secretary, responded, “The will of the people does not supplant the rule of law, and cannot replace it.”

IN TRUTH, THE BATTLE against former Court president Aharon Barak’s so-called “constitutional revolution,” led by such legal luminaries as Professor Ruth Gavison, former justice minister professor Daniel Friedmann (both of whom are Israeli Prize awardees) and former Court president Moshe Landau is not one against the “rule of law,” but against the “rule of the judges,” or, as Landau put it, rule by 15 Platonic Guardians.

But whatever one’s view of Barak’s revolution, one must be awed by the skill with which he succeeded in establishing the Supreme Court as the dominant branch of government, despite starting with a weak hand — i.e., the lack of a written constitution.

To cure the latter defect, Barak proclaimed two Basic Laws passed by the Knesset in 1992 to be of constitutional status, despite the fact that they were passed in the middle of the night, after scant debate, with only little more than a quarter of MKs voting for one and less than half for the other. Though sponsors of the two Basic Laws claimed that they conferred no new powers on the High Court, it was not long before Barak asserted the right of the Supreme Court to vacate statutes as unconstitutional in the landmark Bank Mizrahi case.

He also soon began importing values, such as “equality,” into the constitution whose very existence he discovered — though the support of the Shas party for the two Basic Laws had been specifically conditioned on omission of the term “equality.”

But declaring his power to strike down Knesset statutes was only a small part of Barak’s plan to establish the Supreme Court as the most powerful branch of government. Next he did away with traditional legal rules of standing (who can bring a suit) and justiciability (what kind of suits may be brought), going so far as to claim that the Supreme Court has the authority to rule on troop movements in time of war.

As a consequence, every governmental decision from which any private citizen might object now became subject to review by the Court, sitting as the High Court of Justice (“Bagatz”), employing an all-purpose standard of “reasonability” (in the eyes of the justices). Barak showed himself perhaps the world’s most unabashed advocate of rule by the “wise.” Reasonability, he urged, is determined by the values of the “enlightened and progressive” elements of society. So much for the basic rule of democracy: rule by the elected representatives of the people.

The only party that could not be assured of a hearing before the High Court turned out to be the government itself. In another sleight of hand, Barak, without any statutory warrant, determined that the attorney general (a position he once held) is the final legal authority for the government, and that his decisions are binding upon the government. Since attorney general (along with the position of state’s attorney) is one of the traditional stepping stones to the High Court, an ambitious attorney general was more likely to spend his time anticipating the wishes of Barak than the government he supposedly served. The power of the attorney general has now been expanded to an army of legal advisors that has spread into every government ministry and even army units in time of war.

And best of all, from Barak’s point of view, the system was self-perpetuating. Just like the powers of the attorney general, Israel’s method of judicial selection is unique in the democratic world: The three sitting justices on the nine-person committee exercised, under Barak, a virtual veto on any new appointments. The system was characterized as “a friend brings a friend.” Anyone formidable enough to threaten Barak’s activist regime — e.g., Professor Gavison — was denied appointment.

Under Justice Minister Daniel Friedmann, and most recently under Ayelet Shaked, certain changes to the selection process — e.g., removal of the court president’s power to appoint temporary justices; a requirement of seven votes in the committee for confirmation — gave a determined justice minister more leverage in the negotiating process. And Shaked succeeded in securing the appointment of six justices she could live with.

More important, Shaked and policy institutes like the Kohelet Forum have made progress in shifting the public debate and exposing the lie that judicial activism represents the “rule of law.” But for all their success, the basic structure of the legal regime Barak set in place remains.

It would be a tragedy if the linkage of legal reform to the prime minister’s personal fate provides a club to delegitimize the necessary reforms Israeli democracy requires.

Originally featured in Mishpacha, Issue 762. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com