In 1998, Hillel Neuer, now executive director of UN Watch, wrote a lengthy article on Israel's judicial system in light of the changes instituted by then Chief Justice Aharon Barak. He ended his article with a prophecy:
The court, he wrote, "threatens the Israeli public with an unprecedented centralization of power among a handful of like-minded judges… there is a zone where 'the decision is made according to the personal worldview of the judge' (quoting Barak himself on this, ed.)... and his 'outlook on society, law, judging and life is what directs his path' (Barak again, ed.). Israelis may have good cause for concern in discovering that this subjective zone - and with it the politicization of the court - is likely to grow apace, an inevitable result of the Barak approach."
Today, a good many Israelis from all walks of life will tell you that they are extremely concerned, having discovered for themselves that those words were an all-too-accurate prophecy. The subjective zone has not only grown apace, it seems to have grown in only one direction, guided by that "handful of like-minded judges."
The impetus for writing this article is the decision by current Chief Justice Miriam Naor that justices were not to attend the official, government sponsored evening on September 27 in Gush Etzion celebrating 50 years since the liberation of Judea, Samaria, Jerusalem, the Jordan Valley and the Golan Heights in 1967. This celebration was planned by the Knesset Committee in charge of ceremonies, and as such required attendance of a high ranking delegate from each government branch: the executive, legislature and judiciary.
The judiciary, however, was not represented. Naor wrote that the subject of the ceremony is one over which there is public controversy – as if there is anything that is not a matter of controversy in Israel! - and that a Supreme Court justice's attendance would not be ethical. Instantaneously creating a new standard, as well as turning the elected government celebration into a political issue, she said that "an event cannot be judged by its title, it must be judged by its essence." Justice Noam Solberg, a resident of Gush Etzion, attended of his own volition, but was part of the crowd.
In late 2016, Chief Justice Naor had no qualms about attending a non-government sponsored event of the Jerusalem Center for Ethics headed by Ruth Cheshin, board member of the radical left NGO Yesh Din. The event took place one day before Yesh Din appeared before Justice Naor as plaintiff in the suit against the later-displaced residents of Amona
Naor neither apologized nor evinced discomfort at being called out for terming a government-sponsored event 'political' or for her own inconsistency.
Was this a case of the Chief Justice overstepping the court's authority? That is a moot point. There does not seem to be a boundary defining or limiting the cour's authority.
1. How Israeli Supreme Court justices are chosen:
If you live in the USA, the fact that judges let their worldview and outlook on society affect their decisions, whether consciously - or unconsciously, because they are human like the rest of us - is a fact that has a built in limitation. Every new US president tries to fill the seats on the Supreme Court available during his term with judges who suit his own worldview. He has the power of nomination, according to the Constitution.They are then vetted by Senate Judiciary Committee, which has its own worldview, not necessarily the same as the president's. The committee reports to the Senate and there is a vote. There are loopholes, but this is the general picture.
Since new presidents are elected every four years and judges retire and are replaced, there is change in the makeup of the court that goes beyond simple replacement. It is sometimes more conservative, sometimes more liberal, sometimes it even seems balanced.
In the US, the members of the two branches of government select the members of the judicial branch. They choose the Supreme Court justices and all federal court judges. The president and Congress, therefore, have the freedom and ability to shape the Supreme Court.
These checks and balances work. The courts wield power over the other two branches, and each of those two can affect one another's actions
That concept does not exist in Israel's Supreme Court. The founders of Israel wanted to prevent the politicization of the courts, so new Supreme Court justices are chosen by a 9-person committee made up of 3 serving justices, the Justice Minister and another minister, two members of the Bar Association and two MKs (traditionally, one MK from the coalition and one from the opposition, but that is not binding). The Bar Association committee members do not want to antagonize the judges before whom they have to appear in court, leading to the decades-old situation in which, with few exceptions, no matter who is on the committee, its three justices plus the two Bar Association reps form a majority and continue in effect to choose the new ones, ensuring they have the world view of their predecessors. There is no vetting and the prime minister has no say. Former Minister Gideon Saar changed the majority vote to a special majority of 7 while current Justice Minister Shaked succeeded in having four judges of her choice appointed after masterly negotiations.
Years earlier, Aharon Barak prevented the brilliant Prof. Ruth Gavison from becoming a Supreme Court Justice by claiming she "had an agenda." What he meant was that her agenda differed from his and those of his colleagues on the court. Gavison does not believe in judicial activism.
The Chief Justice claims presiding judges who sit on each case are chosen randomly, but she hedged that statement recently. What really happens is not clear.
2. Israel has no constitution:
Legal decisions in Israel, since the establishment of the state, have been based on common law, with the addition of what are called Basic Laws, meant to be the building blocks of an eventual constitution. (The very idea of having a constitution is a matter of dispute and has not been advanced, but is not the subject of this article.)
Before 1992, the Basic Laws established or regulated important institutions or enshrined national symbols (e.g., Basic Laws on Jerusalem Capital of Israel, The Army, The Economy), but did not affect future legislation.
Then in 1992 two Basic Laws of a constitutional character were passed, opening the door to judicial review of legislation passed by the Knesset.
One is the Basic Law of Human Dignity and Liberty (human rights), the other the Basic Law of Freedom of Occupation.
Chief Justice Barak, who called the new Basic Laws "a constitutional revolution" wrote: , "If up until now judges were given 'conventional weapons' to deal with legislation by way of interpretation and the creation of Israeli common law, now judges have been given 'nonconventional weapons,' which allow nullification of legislation which does not observe the Basic Laws' criteria."
The Basic Laws of 1992 "entrenched" certain rights, binding all subsequent legislation to the standards set by the new laws and how they are defined and interpreted by a court that, on the whole, does not change the character and worldview of its members.
When dealing with cases involving values or the clash between competing values, Aharon Barak claimed his decisions were based upon what he called the "feeling of what is just as held by the enlightened public" The "enlightened public" does not sound particularly democratic, and experience has shown that the expression leaves most Israelis outside the pale, including many "enlightened" observant people who want the Jewishness of the state to be evident.
In order for the laws to pass, the court agreed to insert a clause to the effect that the Basic Laws were inapplicable to legislation that preceded 1992. This was crucial because it preserved the "status quo" regulating the relationship between religious observance and the Jewish state – including divorce and marriage according to Jewish law. That, too, has recently been challenged by a Supreme Court Justice who is pro- LGBT marriage and adoption – and who wondered aloud how long the courts would be limited by that clause in the Basic Law.
As one Israeli pundit wrote, how can the court strike down laws that it rules contravene the Basic Laws, but allow itself to talk about erasing a clause in a Basic Law?
Standing and justiciability
Two other developments occurred, slowly but surely, to add to a growing presence of the judiciary in Israeli life. They were: Erosion of the need for standing and widening of the scope of justiciability.
In most judicial systems, a person must have standing ( the requirement that plaintiffs have sustained or will sustain direct injury or harm) to approach the courts.. The Supreme Court under Barak eroded this limitation, enabling, for example, radical left NGOs to file suit against construction in Judea and Samaria that they claimed was on private Arab land, in order to correct what they considered an injustice. This became the norm, although the organizations did not own the land or claim to own it.
The Supreme Court does not investigate land ownership, but simply hears both sides. It dealt with these cases even though there were no claimants much of the time, it disallowed compensation for the land when there was proof of ownership – even if the land was in the middle of a Jewish community where no Arab could utilize it or included several houses on a built up street - and did not turn to Magistrates Court requesting an investigation.
The Courts ruled against the government when it decided to force destruction of homes in places the government had allowed Jewish communities to be built, but those affected were upstanding citizens of the State. (This article does not go into the issue of whether the Israelis could have checked things more thoroughly or deal with those who build in places that are clearly legally problematic.) It sided with the government in the case of the Katif Bloc and refused to leave Jerusalem to look at the area for itself, despite entreaties from the upstanding Israeli citizens living there who had been encouraged, not just allowed, to do so by the government.
The second development was the scope of issues the court deals with. In keeping with the policy of judicial activism which guided the court's activity, Barak declared that "everything is justiciable." The court decided on the route of the security fence, rather than leaving those decisions to military experts, sometimes going against the IDF's advice when they felt human rights were harmed (Arabs who claimed the route was affecting their farming.) More recently, it dealt with the issue of private kashrut supervision, ignoring the Rabbinate's brief insisting that the secular courts in Israel cannot decide on halakhic issues.
These two developments led to the present situation where the court deals with almost every topic on the public agenda.
3. The judiciary in the Jewish State: Preserving the Jewishness of Israel
The designation of Israel as a Jewish state – the only Jewish state - further complicates matters due to clashes that arise between individual rights and Jewish values – including the basic value of having a clearly Jewish state and the definition of what constitutes Judaism.
There is as yet no Basic Law protecting the preservation of a Jewish state. When a clash of values occurs, the mainly self-cloning court rarely considers the value of preserving a Jewish state in its decisions, preferring the value of individual human rights.. Thus, it favored the rights of infiltrators over those of south Tel Aviv's Jewish citizens and ignored the fact that the tens of thousands of Muslim African infiltrators would change the character of the state.
Using the Basic Law of Human Dignity, the courts ruled that Israel cannot take away residency permits of Hamas members.
Likewise, it ruled on a prayer area at the Wall for movements who deny halakhah and pray in mixed gender settings.
The court's missing the challenge of considering how to deal with issues arising from the makeup of the only Jewish state and its problems led it to strike down the draft laws which struck a balance between the haredi, non-haredi and secular point of view on Torah study, a delicate and emotion-filled balance at best. Its dedication to an either-or definition of equality blinded it to the social upheaval that would result, the anti-haredi feeling it would exacerbate and the anti-Zionist feeling that would increase among the haredim . Lawmakers had engaged in give and take, the way politicians do, and had found a way to effect gradual change in a polarized society. . It may have required adjustment, but is considered infinitely better for the well being of Israeli society than a court decision.
Israelis on the right side of the ideological spectrum feel that the courts do not recognize another aspect of the Jewish state– love for the land , for Eretz Yisrael. The court, for example, does not take into account that any Arab selling land to Jews is endangered so that certain land deals were done secretly, written on pieces of paper and not reported to the land authorities. The left is well aware of that and takes advantage of it.
The court under Chief Justice Dorit Beinisch also decided to rule that land in Judea and Samaria which is not state land and has no recorded owners, is de facto Palestinian Arab land. It ruled against compensation once again in the case of the Netiv Haavot houses, ruling to destroy them when there is only a strip of land that is in question.
In recent weeks, the courts have taken judicial activism to new levels, leading Israeli pundit Yair Sherki to quip that he thinks the activist justices have developed hyper-activity. Another columnist, Hagai Huberman, wrote that in their desire to become the leading force in Israel's government, the justices have ignored the existing system that succeeded in balancing the legislature and the courts for decades, forgetting the wise Talmudic saying which states: "If you snatch too much, you end up with nothing"
A brief recapitulation of some recent decisions shows new and old lines that have been crossed.
The courts annulled the Knesset law taxing owners of a third apartment. claiming that the way the law was passed was faulty. Knesset procedure was put on the chopping block.
The courts, bound by the grandfather clause in the Basic law for human dignity which preserves the status quo of laws passed before 1992, ruled that same-sex marriages are not permitted in Israel, but hinted that it might be possible to ignore that clause in the future. But the religious parties voted for the Basic Law, allowing for its passage, only on condition that such a clause exists.
The courts ruled that the passage of a two-year state budget, accomplished by using a provision of the basic law with regard to the economy that allows for a one-time decision on the matter, is a misuse of the basic law because it has happened several times in a row. It insisted that the Knesset pass a law specifically allowing a two-year budget. The law, as it stands, however, allows for exactly that temporary procedure, meaning that the Supreme Court has overturned a clause in a Basic Law, even going so far as to calling it possibly an illegal law. Up to now, the courts struck down laws that they ruled contradicted Basic Laws. This court decision itself contradicted a Basic Law.
The courts, wrote Chagai Huberman, added a sentence to their decision taking down the present Draft Law, in which Chief Justice Naor wrote that any new law must include the clear goal of advancing equality in military service.. He asked in amazement when the courts acquired the right to tell the legislature what its goals are. Although equality is a supremely important issue, he continued, it is not the court's purview to define how it is achieved. What if the lawmakers believe that Israel should have differentiated types of service for different sectors?
It is claimed that Knesset members refrain from passing laws when they feel that they will be overturned by the court as it is today.
It has also been claimed that little by little, the court is eroding the Jewish aspect of the Jewish state, and that, as Neuer predicted in 1998, there will soon be "little or no difference between Israel and secular democracies such as the US or Canada."
The ceremony in Gush Etzion may have triggered subject matter for a sequel to this article. Justice Minister Ayelet Shaked, who criticized Naor's decision on the ceremony and Education Minister Naftali Bennett are working on a law that will allow the Knesset to re-propose laws struck down by the Supreme Court in certain instances.
The two, along with other MK's, proposed the Regulation Law for recognizing, with compensation, existing but contested homes in Judea and built through government encouragement and bona fide lack of knowledge that there could be a claim.
There have also been attempts to change the makeup of the judicial selections committee or the number of votes needed to choose a judge once again..
At this point in time, the jury is still out on striking a balance between Israel's three branches of government.