The magazine Olam Katan this week published Attorney Zeev Lev’s detailed responses to claims that have been made by the left and other objectors to Justice Minister Yariv Levin. Lev is the legal counsel of the Movement for Governance and Democracy that was established a decade ago by Levin’s ally, Constitution, Law, and Justice Committee Chairman, MK Simcha Rothman. The Jewish Press received permission to translate the entire article, so here it is. I took the liberty to expand and explain some of the terms which the author assumed Israeli readers would be naturally familiar with – David Israel.
Print and hand it around the family Purim Se’udah and the Passover Seder.
THE OVERRIDE CLAUSE
1. Is overriding commonly used around the world?
Overriding is a rather uncommon method around the world, where two methods are used in the relationship between parliament and the courts: one in countries where the court does not have the ability to invalidate laws at all (such as Great Britain, New Zealand, the Netherlands, Denmark, Switzerland, Sweden, and Finland); the other in countries that have a constitution that was adopted by a very broad consensus, based on which the court invalidates ordinary laws, therefore the only way to overcome a court ruling is by changing the constitution. Since the State of Israel does not have a constitution, and certainly, there is no broad consensus on adopting one, the appropriate solution would have been to not invalidate laws at all. The compromise offered by the judicial reform is to allow the court to invalidate laws but to create a parliamentary override mechanism.
2. What is the overriding process proposed by the reform?
In the current proposal (which has already been changed twice since the announcement of the reform, and may change again), overcoming must be in advance: if the Knesset wants to protect a law from disqualification by the court, it must include in it an express clause from the outset according to which the law would apply despite its inconsistency with the relevant Basic Law, and pass it by a majority of sixty-one MKs in three votes. Nevertheless, this protection comes with a sunset: it would expire automatically one year following the election of the next Knesset. In fact, this proposed override hands the court an advantage it never legally had before, formally giving it the power to invalidate laws. All 22 invalidations of laws by the court in the past were done without a basis in legislation.
3. What significance remains for the court’s review of Knesset laws if it is possible to immediately override the disqualification of its laws with the minimum majority of sixty-one MKs? Why not at least demand a bigger majority to override?
Let’s start with the fact that in terms of international practice, since Israel does not have a constitution, there is no real justification for invalidating laws by the court. In effect, the judicial reform gives the court an unprecedented power to invalidate laws so that the Knesset itself be able to clarify which principles are important in its view, so that should a future Knesset wants to overturn them, the court would raise a red flag and alert the public to the harm.
Requiring a majority that’s greater than sixty-one would mean that the majority in one Knesset (enacting the reform) is more important than the majority in the next Knesset wishing to override a High Court ruling, which would be inappropriate. But the most important thing is to stand by the fundamental principle contained in the statement that a Knesset majority is more qualified and more worthy than a court majority, which is why the Knesset should be able to prevail with the minimum absolute majority.
4. After all the claims about judicial activism, the High Court has annulled a total of twenty-two laws since the establishment of the state, so what is all the fuss about?
There are three points to be made in this context:
a. The invalidation of twenty-two laws in twenty-eight years (until 1995 there was an overwhelming agreement that the court is not authorized to invalidate laws) is quite a lot. Some overturned legislation resulted in political crises: the draft law, the regulation law, and the anti-illegal infiltrators’ laws.
b. The very ability of the court to invalidate laws creates a threat leading to dropping many laws before they are born because the legal counsel to the government threatens that it would not defend them in court and they would be thrown out by the High Court. In fact, this constitutes an even bigger problem than the invalidation of existing laws, since it involves the intimidation of elected officials by the people who are supposed to help them conduct policy.
c. Finally, the fundamental question arises: who is the sovereign in our country, who has the last word – the public through its elected lawmakers, or a handful of unelected judges who are accountable to no one?
5. What power is left to the court?
The court still has the power to criticize the government as it did in all its years, and certainly until 1995 when Court President Aharon Barak launched his judicial revolution. This power remains touched for the most part. The court is also given the power to invalidate ordinary laws, to arouse the public, warn the Knesset, and in most cases prevent legislation.
1. What is the current difficulty with the method of appointing judges?
The current system is very different from what is accepted around the world: the judges of the Supreme Court have an automatic veto over the appointments to the Supreme Court. Throughout the history of the State of Israel, the three judges of the Supreme Court in the committee to elect judges have voted with one voice, even though such an alignment of their votes contradicted the law. Since the appointment of a Supreme Court Justice required the consent of seven out of nine committee members, the court representatives could block any appointment they did not like (including, for example, the appointment of a civil-rights activist who was published by the Yale Law Journal and Oxford University, Prof. Ruth Gavizon, on the grounds that she had “an agenda,” as President Barak famously put it).
The result was a monolithic court, which represents the views of a very small group in the Israeli public and hardly represents the large majority at all: Israelis who vote Likud, Shas, and United Torah Judaism, national religious settlers, and Arabs. The court overrules laws, which means it makes value judgments – therefore stands to reason that its judges would represent all the many segments of Israeli society.
2. What does the reform offer?
The current version of the judicial reform proposes that each branch of government would have three members on the committee (three ministers, three MKs––one of them from the opposition, and three judges). However, judicial appointments would require a simple majority, so that no branch of government could veto an appointment. It would still be unusual in a Western world where most judicial appointments are made without any judicial involvement at all, but it would bring us closer to a normative appointment system and help diversify the composition of judges.
3. If the majority in the committee to elect judges is given to the coalition parties, judicial appointments would be political.
True enough, but political in the best sense of the word, meaning judicial appointments would be the product of negotiations among representatives of different groups in the Israeli population so that in the end the chosen judges would represent a broader gamut of public opinion.
4. What are the methods used around the world for appointing judges?
In the Western world, judges are appointed to the Constitutional Court by elected officials from the political system. An examination of about forty leading Western countries shows that in about 25% of the countries, the government alone appoints the judges; in about 25% the parliament alone does it; in about 35% of the countries, judges are appointed by a combination of government ministers and Parliament; and only 15% of the countries have judicial involvement in the appointment.
But except for India, there are no major democracies where judges have a veto right over the appointment process.
1. What’s the problem with the reasonability argument, and how will the judicial reform fix it?
The court has no superior ability to examine the reasonability of a decision that’s better than any citizen on the street. The meaning of evaluating the reasonability of the government’s decisions is that the personal opinion of the judge prevails over the opinion of the ministers. This was the case regarding handing over the bodies of terrorists, and demolition of terrorists’ homes, to name but two instances, when the court placed itself above the government and its professional experts. In reality, the court does not have the authority, knowledge, or tools to make better decisions than the government.
2. If the reasonability argument is rejected by the judicial reform, won’t every minister be able to do what they want without judicial review?
Certainly not. First, illegal decisions will still be invalidated. Likewise, decisions that were made through an improper procedure––without hearing all the parties, or without allotting sufficient time for debate––would also be struck down by the court. On the other hand, decisions that do not contradict the law and were made via a proper procedure, but appear to the court to be unreasonable, will not be invalidated.
THE ATTORNEY GENERAL
First, a short clarification: Ha-Yo’etz Ha-Mishpati La-Memshala, lit. Legal Advisor to the Government, wears more hats than a hyperactive mime: he or she heads the legal system of the executive branch as well as the state prosecution; advises the government in legal matters; represents the state authorities in court; advises in the preparation of legal memoranda for the government in general and the justice minister in particular; examines and rules on the validity of MKs’ private bills; and is tasked with protecting the rule of law; entrusted with protecting the public interest from the government.
Do you recognize a slew of internal conflicts in the above job descriptions? You are not alone. In fact, former Justice Minister Gideon Sa’ar, currently one of the most outspoken critics of the judicial reform, had at the top of his agenda the splitting of the AG’s position into two, preferably three different offices.
But wait, there’s more: the AG is an independent appointed position, arguably the most important and influential in the Israeli democracy, comparable to the IDF chief of staff and the police commissioner. However, the duties of the attorney general are not codified in law and have evolved over some 74 years of precedence and tradition. Put that in your pipe and smoke it.
1. What is the proposed change regarding the Attorney General in the reform?
Today, the Israeli AG is a unique position in the entire world: an unelected official who advises the government but whose recommendations are binding, and he/she also represents the government before the court and can prevent the government from presenting its position, while it is also the attorney general, who can file indictments against government ministers.
Like I said, many, many hats.
At this point in course of the judicial reform, the only change concerns the AG’s consultation and representation, stating that the AG’s advice will not bind the government but will be viewed instead as advice only. This change was recommended by two separate committees that were headed by two different Supreme Court presidents: the Agrant Committee (1962) and the Shamgar Committee (1997). Also, if there is a disagreement between the AG and the government that reaches the court, the government would be able to hire legal representation other than the AG.
2. If the minister appoints his or her own legal advisor, the advisor would be afraid to speak up, and the minister would be free to do illegal things.
First, the appointment of ministerial legal counsel is not part of the current judicial reform but a separate proposal. Second, there’s no reason for the legal advisor to be afraid to speak up, much as an attorney any one of us hires to protect our interests would speak up, and then some, if he or she identifies a problem in our conduct that could jeopardize our case. The legal adviser that the minister appointed would express his or her opinion to the minister, who would probably listen, since he or she would trust the attorney they themselves hired. But should the minister act contrary to the law, the court would punish them, either in a criminal proceeding or by revoking the ministry’s action.
It’s important to stress that the court’s authority over government ministers would not change.
GENERAL Q & A
1. It appears that the basic principle of the separation of powers in Israel is going to be severely damaged.
unequivocally no. The principle of separation of powers states that the legislative branch should legislate, and the judicial branch should judge according to the law. In the current state of things, the procedure of disqualifying laws by the court violates the principle of separation of powers, but the judicial reform will allow the Knesset to override the disqualification of laws and retain the authority to legislate.
2. What prevents the Knesset from enacting extreme laws once the reform is instituted, such as canceling the elections, or violating women’s rights?
The citizens do. First, it’s hard to imagine a Knesset with a majority that favors this kind of harmful legislation, but even if there is one, the citizens will punish it immediately. A Knesset that suddenly announces the end of Israeli democracy (and the cancellation of the elections), would not be stopped by the courts – historically, whenever dictatorships took over, the courts were only too happy to collaborate. The freedom-loving public would disperse such a Knesset.
This would be a good place to mention that a ruler who receives broad public support can overcome any court, even a very strong constitutional court. A case in point is Turkey, which has a strong constitutional court that couldn’t stand up to the tyrant President Recep Tayyip Erdoğan. Courts don’t stop dictatorships, people do.
3. Won’t the weakening of the court in the eyes of the international legal community not expose IDF soldiers to lawsuits for war crimes in the world’s courts?
No, this is a blatant deception. The protection of IDF soldiers around the world stems from the principle of complementarity, the principle that jurisdictions will not overlap in legislation, administration, or prosecution of crime. It means that the International Court of Justice will intervene only when the country involved is unable or unwilling to conduct the prosecution of a war crime properly. The principle of complementarity is not related to the structure of the branches of government nor the relationships between them, but to the structure of the country’s criminal law and how it is applied.
There is not a shred of intent in the judicial reform, now and in the future, which alters criminal procedures in Israel.
4. Speaking of which – what about Prime Minister Benjamin Netanyahu and his inherent conflict of interest as a defendant facing three criminal indictments? Doesn’t Netanyahu promote judicial reform only to come out scot-free?
The judicial reform has been in the works for at least ten years, long before the indictments or even the investigations against Netanyahu. Beyond that, this is a deliberate deception of the public, since the judicial reform does not help Netanyahu at all: his trial is already underway, and the judges who try him will not be directly affected by the reform. Indeed, the notion that the judges, who were appointed under the old system, would bend the law in Netanyahu’s favor in the hope that this would help their promotion to the top in the distant future is sheer slander against the judges of Israel and deeply illogical.
5. Even if each of the articles of the reform is correct by itself, it seems that there as a whole, this reform is a collection of all the methods that weaken the courts all over the world, creating a situation whereby the Israeli court becomes utterly powerless.
The reform as a whole does not even bring things back to the way they were before 1995 but leaves much more power in the hands of the court. We explained in the previous answers the importance of each part of the judicial reform, and it must be stressed that all the parts together are the norm in the Western world, most notably the countries where there is no judicial review at all. However, instituting only some of the components of the reform individually would be flawed, and won’t allow the restoration of the balance between the branches of government.
6. Regarding political agreement: how do you pass such a reform without a process of negotiations?
Negotiations are usually done in the Knesset when each side presents its version of the law and negotiates it. Attorney Zeev Lev notes: I have been sitting on the Constitution, Law, and Justice Committee since the first day of the reform debate, and I have not seen any concrete proposal from the members of the opposition. The calls for negotiations under the auspices of the President, which have been issued by the Justice Minister and the Committee Chairman, were not answered either. Negotiating does not mean giving up on the will of the public and surrendering, but an honest dialogue that seeks to find solutions. But if the other party is not interested in finding solutions, it is very difficult to talk.
7. Why not stop the legislation process for two months to reach negotiations?
Stopping the legislation for two months would in effect lead to a delay of about a year in the legislation since the Knesset will go into recess. Such a delay is unfair to the right-wing voters, especially when at the same time the court continues to invalidate laws, (including the constitutional basic laws), continues to debate the incapacity of the prime minister, and the entire legal system is mobilized to harm the coalition in the hope that it would not survive long enough.
Negotiations should be done based on drafts of specific proposals, not hot air, otherwise, it’s just an exercise in wasting time and not real negotiations.
8. How do you explain that so many professionals, academics, veterans of security agencies, and Nobel Prize winners oppose the reform and no one supports it?
For many years there has been a serious bias in the mainstream media that causes many professionals to conceal their true opinions. Also: in many institutions––academia, the army––over many years mostly individuals with a leftist worldview have been promoted, and those naturally oppose a judicial reform that would weaken their control of the country. In this context, it must be noted that the radicalization of the Supreme court took place only a few years following the 1977 historic victory of the right. Demographic realities have only made things worse for the secular left in Israel, as it is becoming increasingly outnumbered by the national religious, Haredim, and Arabs.
Births have consequences.
And still, despite the years of liberal bias, most professionals support the reform! This is what came out in a survey conducted among the members of the Bar Association, and similarly in a rally in support of the reform in which more than eleven members of the Council of the Bar Association (the bar’s governing body) participated.
Prominent supporters of the judicial reform include Nobel Prize winners, many professors, and many Ph.D. holders. The problem is that the enlisted mainstream media are more likely to cover a bunch of reservists who steal a tank than any of the many groups that support the reform.
Here’s an illustration that was ripped from the headlines: during a conference of the Israeli bar association earlier this month, attorney David Hodak, a partner in one of Israel’s largest firms, Gross, Kleinhendler, Hodak, Halevy, Greenberg, Shenhav & Co., threatened onstage: “I decided that I will not live one day in a dictatorship and I will not leave the country, and if I have to fight for it – I will fight.”
Hodak added: “I talk to my friends from the military service, younger, and more mature, in the government they don’t understand the energy levels in the Israeli public and the level of opposition to this destructive legislative program. People are ready to fight with weapons…”
But a little over a week ago, David Hodak announced he was leaving his firm and accused his partners of betraying him. Hodak wrote: “At the end of the packed day, I started receiving messages from acquaintances, that the firm I belong to is rejecting me. … apparently a major client of Gross, Kleinhendler, Hodak, Halevy, Greenberg, Shenhav & Co., “expressed dissatisfaction with my words against the government’s legislative plan.”
So far, attorney Hodak has not called on his friends from the military service to launch a brave attack on his treasonous former partners.