The Supreme Court under fire

Legislative proposals will undermine court's ability to protect minority from majority.

By MORDECHAI KREMNITZER, AMIR FUCHS
Israeli Supreme Court 311 (photo credit: REUTERS/FILE)
Israeli Supreme Court 311
(photo credit: REUTERS/FILE)
Numerous legislative proposals have been brought to the Knesset in a concerted strike at the Supreme Court’s independence, professionalism and authority. If it succeeds, this attack will destroy the court’s ability to act as the protector of human rights and the rights of the minority from the devastating power of the majority.
Much attention has been focused on the proposal promoted by Justice Minister Yaakov Neeman, who seeks to intervene in the process of selection of the Bar Association’s representatives to the Committee for the Selection of Judges. Neeman’s goal is to ensure that the Bar sends a representative with whom the government, which is dissatisfied with the results of the elections to the Bar, will be comfortable. He does so while ignoring the fact that the balance of the committee has already been disrupted, since the Knesset selected two right-wing MKs as its representatives, in defiance of the accepted custom by which the representatives have always included one from the coalition and one from the opposition.
Should Neeman’s bill pass, the coalition will have its majority in the Committee for the Selection of Judges and will enable it to push through the appointment of all judges (except for Supreme Court judges, whose appointment requires a majority of seven members). Judges will thus be selected according to political considerations by politicians who do not have the qualifications to evaluate the professional level of the candidates. Additional legislative initiatives – in particular, the proposal to conduct a public Knesset hearing for candidates for the Supreme Court to determine their political positions and a proposal that the chief justice of the court be elected by a secret ballot in the Knesset – could transform the process of appointments of justices into a political process. Indeed, this is the purpose of these proposals.
The politicians leading these initiatives claim that public trust in the Supreme Court is waning. Between 2008 and 2010, there was a certain amount of truth to this argument. The majority rarely approves of the court: It is the court’s role to defend the rights of the minority, including Israeli Arabs and residents of the territories, and this always costs the court the support of the majority. This phenomenon has been exacerbated by politicians’ brazen attacks on the court over the past 15 years, and especially over the past five years. Yet, data from the past year reveals that the trend is reversing. According to the Democracy Index, a survey conducted by the Israel Democracy Institute, nearly 65 percent of the public does trust the Supreme Court, compared to only around 50 percent in the years 2008-2010.
It would behoove the politicians to examine the lack of trust that the Israeli public expresses towards the politicians – 50 percent for the Knesset and only 30 percent for the political parties.
The Supreme Court is not solely a constitutional court. It hears some 10,000 cases a year, including thousands of criminal and civil appeals. To date, judges, like all civil servants, have been appointed on a professional, rather than political, basis, although the inclusion of four politicians on the Committee for the Selection of Judges stems from the recognition that the appointment of a judge must also enjoy public legitimization.
The critical questions are: Will the public’s trust in the court grow if the Court becomes overtly political rather than professional? Should we sacrifice the professionalism of the judges, together with the public trust, on the altar of political appointments? Another cluster of political proposals seeks to limit the authority of the High Court of Justice and the accessibility of public petitioners to the court. Others seek to grant the Knesset authority to pass legislation to contravene judicial decisions.
In contrast to the US , the government sits on the shoulders of the Knesset majority. The Knesset is therefore incapable of restraining the executive branch. This is clearly the role of the High Court of Justice. In the absence of a formal constitution, the court has a crucial and unique responsibility for maintaining the democratic rules of the game and safeguarding human and civil rights. During the first decades after the establishment of the state, the court defined a legislative bill of rights whose role, in retrospect, has been critical in the establishment of Israeli democracy.
Furthermore, given that the Arab minority lacks political power and has been excluded from participation in the government, the Supreme Court, convening as the High Court of Justice, provides the only protection it has from the tyranny and discrimination on the part of the majority. This is also true for the Palestinian residents of Judea and Samaria, who have no political rights at all. And a large body of Supreme Court decisions proves that Jewish citizens, too, often need judicial protection of their rights.
Any attempt to strike at the Supreme Court – whether through politicization of the process of the selection of judges or limitation of its authority to safeguard human and minority rights – is a strike against democracy.
The attacks on the court must be viewed as part of a wider campaign of destructive legislation intended to limit equality, especially with regard to the Arab minority, including legislation such as the law permitting acceptance committees to screen out prospective candidates for small villages, the Nakba law that imposes sanctions against expressions of sympathy with the Palestinian experience during Israel’s War of Independence, and the various proposals demanding loyalty pledges, as well as the legislation to limit freedom of expression and curtail the activities of human rights organizations.
If this campaign succeeds, Israeli democracy will become little more than a hollow shell, in which a tyrannical majority will be able to impose its will without restraint. In a situation of limited freedom of expression, even elections will become meaningless.
Prof. Mordechai Kremnitzer is vice president and attorney Amir Fuchs is a researcher at the Israel Democracy Institute.