This maxim could serve attorneys well: Do not investigate what you cannot litigate. This is expedient in advanced democracies but hardly applicable in Israel, because Israel is a judicial despotism. The “rule of law” in Israel is no longer the dispassionate enforcement of duly promulgated laws, but has become the rule of unchecked lawyers and judges, which President Reuven Rivlin once referred to as the tyranny of the “rule of law mafia.”
In Israel, the legislature is not sovereign to legislate, and the executive lacks actual control to execute the instructions of the legislature. The Supreme Court has seized the government’s power to determine policies.
The dictum of Aharon Barak, President of the Supreme Court of Israel (1995-2006), that “everything is justiciable”, everything is liable to trial, makes nonsense of the rule of law, and Israel’s reputation as a democracy. The rules of law that Barak’s judicial opinions created have no counterpart in advanced democracies: a court can countermand military orders; decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal’” and direct the government to move the security wall that keeps suicide bombers from entering Israel; that judges can only be removed by other judges; etc. This passes for the rule of law in Israel: arbitrary decrees by unelected officials.
Israel’s Basic Law: Knesset defines the Knesset as the sovereign. That is because the public elects its members in national elections. Members of Knesset in turn, elect the government as the executive arm of the people’s will. In democracies, the parliament legislates laws; the executive implements policies in accordance with the law and the mandate it receives from the voting public; the judicial branch interprets laws.
Since Barak’s dictum, the authority of the Knesset to promulgate laws has diminished. The justices of the Supreme Court and the attorney general seized legislative power by abrogating laws and interfering with the legislative process, and dictating laws through legal opinions and judgments. They also seized executive power by canceling government decisions, and asserting the power to dictate policies to the government.
Mandelblit attacked government ministers for advancing a bill to expel the families of terrorists from their homes. He stated: “The proposed law to expel families of terrorists inside the Territories is unconstitutional.” But Israel has no constitution.
He said the bill, “raises difficulties in the international arena.” But the attorney general has no proper diplomatic qualifications. The government is in a better position to judge Israel’s diplomatic interests than the attorney general.
Mandeblblit insisted: “The argument that my objection [to the proposed law] harms national security is devoid of all foundation.” But the unelected attorney general has no way of knowing that his assertion is true.
At a Knesset hearing in November 2018, Deputy Attorney-General Dina Zilber was asked to represent the position of the government regarding a controversial bill that would block state funding to artists and productions that campaign against Israel. Bereft of legal argumentation, Zilber viciously attacked the bill.
Justice Minister Ayelet Shaked responded to Zilber’s attack by informing Zilber’s boss, Mandelblit, that she would no longer permit Zilber to appear before Knesset committees or the government because of her abuse of her office, and unwillingness to follow the law, which requires her to represent faithfully the positions of the Justice Ministry.
Shaked’s position was grounded in Israeli law. Israel lacks a formal constitution, but its basic laws have over time received constitutional standing. As Basic Law: The Knesset makes clear, Justice Minister Shaked is fully empowered to block Zilber from representing her ministry. Instead of accepting that Shaked was operating in accordance with her constitutional authority as the minister responsible for his office, Mandelblit insisted that Zilber would continue to represent his office and the Justice Ministry before the Knesset, and anywhere else he wishes Zilber to go.
When the left-wing chairman of the Knesset’s Economic Affairs Committee, Eitan Cabel from the Zionist Union, summoned Zilber to present the Justice Ministry’s position on regulation of the dairy industry, Shaked received the summons.
Paragraph 21(B) of Basic Law: The Knesset empowers Knesset committees to summon a public official to appear before them, but the law stipulates, “the supervising minister may inform the committee that he will appear instead of the person who was summoned.”
Paragraph 123(A) of the Knesset’s rules provides committees with the power to summon a public servant, but it stipulates that the summons will be made “through the relevant minister and with his knowledge,” further clarifying the minister’s authority.
Acting in accordance with her lawful authority, Shaked informed Cabel that she would appear before his committee instead of Zilber. Mandelblit fomented a constitutional crisis, telling Zilber to appear before the committee despite Shaked’s lawful prohibition.
The Government Service Law bars public servants from openly opposing government-sponsored legislation. When MK Amir Ohana submitted a bill that would permit government ministers to have substantive power to choose their ministries’ legal advisors, passed through the Ministerial Committee on Legislation chaired by Shaked, Mandelblit openly opposed the law and participated in a public protest against it. In a letter leaked to the media, 22 legal advisors for government ministries urged Mandelblit to block the bill.
In 1993, the Supreme Court made the “Pinchasi” ruling: Government ministers must resign if the attorney general indicts them. Thus transforming the attorney general from the government’s legal advisor into the ultimate boss of elected leaders.
Netanyahu and the Likud could win in April, but would need to form a coalition with smaller parties. Likud’s right-wing coalition partners and religious parties have stated that they will join a coalition with Likud, regardless of Netanyahu’s indictment. Together, they could get less than 61 out of the 120 Knesset seats. Thus, to form a government, Netanyahu may need to bring in left-wing parties. Leaders of left-wing parties have intimated, however, that they will not join a coalition with an indicted Netanyahu.
Attorney-General Mandelblit undermines democracy by thwarting the public’s will to achieve its objectives through its elected representatives.
He undermines governance, because he could delay and stop processes, and prevent the government from functioning.
He undermines the accountability of the government, since he could preclude a governmental initiative but does not carry any responsibility for the minister’s failure to fulfill his or her office’s objectives.
He also undermines the right to a fair trial, because even the worst criminals deserves legal representation; whereas, there is no one to represent the public and its elected representatives when the attorney general presents his own position or presents the position of elected officials halfheartedly.
Law should govern a nation, as opposed to arbitrary decisions of officials. Since power tends to corrupt, democracies limit the powers of elected officials; subjecting them to stand for election on a regular basis. Voters can replace an elected official that fails to meet expectations. Power also corrupts appointed officials just as much as it corrupts elected ones; however, voters have no similar authority over unelected officials who fail them. The public did not appoint them, and they owe it no account for their behavior.
The Knesset should determine the matters that courts are empowered to consider, and the disputes that they have the authority to resolve. They should not be policy upon vital matters affecting the nation, such that by their nature should be decided by the political (legislative and executive) branches of the government: defense, foreign policy, immigration, governmental spending, public security, etc.
The Knesset should have the power to impeach the attorney general and despotic judges that are appropriating the powers of elected officials; overriding the decisions of the Knesset and the government. If Israel is to maintain its democracy, its elected officials must challenge the legal fraternity and restore to the Knesset the sole power to legislate laws.
In a democracy, key officials stand for election at relatively short intervals and thus are accountable to the people. A judiciary that freely overrides the decisions of those officials is anti-democratic and despotic. As Abraham Lincoln stated, “if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.”
Ayelet Shaked started reforming the justice system by bringing in people with a broad range of views. In January 2019, her New Right party co-leader, Education Minister Naftali Bennett, while defending her from criticism over allegarions involving her ally in the Judicial Appointments Committee, said: “In recent days, powerful political forces on the left banded together to attack Justice Minister Ayelet Shaked, since they identify her as the only one who had the courage to change the legal system after 40 years of judges appointed in a closed club, Ayelet Shaked arrived, and made changes with determination, courage and wisdom.” Bennett also said Shaked will continue in her postion for as long as it takes to complete the reform.
At a Bar Association seminar in January 2019, Shaked said the accusations were “false attacks and lies.” She rejected calls to step down, and said she would continue serving as Justice Minister after the April 2019 elections, for “four more years, until I complete the revolution I have started.”
May her triumphs be many.
Dr. Sheyin-Stevens is a Registered Patent Attorney based in Florida, USA. He earned his Doctorate in Law from the University of Miami.