VIEWPOINT: Israel’s legal revolution

The legal revolution began with Meir Shamgar’s accession to the post of chief justice in November 1983 and reached its climax during Barak’s tenure in this position.

By DANIEL FRIEDMANN
Former chief justice Meir Shamgar (photo credit: MARC ISRAEL SELLEM)
Former chief justice Meir Shamgar
(photo credit: MARC ISRAEL SELLEM)
THE ISRAELI Supreme Court was founded in September 1948, a few months after the establishment of the state. In its first 35 years the court acquired enormous prestige for its sound judgments, its independence and for gradually developing the law and safeguarding human rights.
During this period the Court exercised self-restraint and respected the separation of powers. It refrained from intervening in the government’s economic and security policy decisions, and recognized that certain issues were not justiciable. When Israel established diplomatic relations with the Federal Republic of Germany, the German government appointed Rolf Pauls, who had served as an officer in the Wehrmacht during World War II, as its first ambassador to Israel. A petition was submitted to the Supreme Court to prevent his entry into the country. In dismissing the petition, Justice Sussman stated succinctly: “The government has decided as it sees fit … The Knesset endorsed the government’s decision … The considerations are not legal ones … and this court is not authorized or able to decide those questions.”
The legal revolution can be understood against the background of the public loss of confidence in the government as a result of the disaster of the Yom Kippur war in 1973, the rampant inflation in the early 80s and the loss of political decency in parliament, which culminated in what was termed the “dirty trick” in the attempt to form a government. The weakness of the political leadership has given the legal establishment, which was now headed by a new generation of jurists, free rein to expand its power.
The legal revolution, in the course of which the Supreme Court overshadowed the other branches of government, began with Meir Shamgar’s accession to the post of chief justice in November 1983, and reached its climax during Barak’s tenure in this position. The revolution was characterized by the rapid annulment of legal principles that had previously constituted the foundation of the Israeli system and their replacement by new concepts that expanded the powers of the Supreme Court and the Attorney General, and turned them into major actors in the governance of the state The Supreme Court’s new role in running the country rested on the abrogation of the requirement of legal standing, the doctrine that all government actions and decisions were subject to judicial review (“everything is justiciable”), and the rule that any decision of a public authority can be quashed on the ground of unreasonableness.
The combined effect of these principles made, for all intents and purposes, every decision by a governmental authority appealable to the Supreme Court. This new approach was diametrically opposed to the legal tradition that had prevailed during the first thirty-five years of Israeli independence, a tradition firmly based on the principle of the separation of powers and cautious judicial development.
Examples of cases brought before the revolutionary court include political agreements regarding the formation of a coalition; international negotiations, and agreements reached by the government with terrorist organizations in which convicted terrorists were traded for Israeli captives or the bodies of soldiers. The Supreme Court has also decided that it may intervene in the appointment of public officials and even that of government ministers on the ground of some blemish is their past. Consequently, the moral issue whether a person should be disqualified on moral grounds from serving in a particular position was turned into a legal question to be decided by the court. Even more astonishing has been the court’s intervention in military operations while they were still in progress, a phenomenon that has no parallel anywhere else in the world.
The process culminated in 1995 when the Supreme Court held that Basic Law: Human Dignity and Freedom gave it the power to review Knesset legislation.
The hyperactivism of the Supreme Court had dire consequences both for the governance of the country and for the court itself. The legalization of every aspect of public life reached unreasonable proportions.
Matters that should be settled in the public arena become the subject of lengthy and costly litigation. Governmental decisions are difficult to implement and the actions of the administration are often unnecessarily impeded.
The Supreme Court also paid a heavy price. Judicial activism increased the court’s workload and cases drag on for many long years.
Public confidence in the court plummeted. A survey, carried out in 1996, showed that 85% of the public had confidence in the Supreme Court. In February 2016 only 56.5% the Jewish population had the same level of confidence.
The involvement of the Supreme Court in political issues has intensified the struggle over appointments to the court. The politicians seek to appoint candidates who share their values while the chief justice and his colleagues try to maintain the dominance which they enjoyed in the past over the process. The present situation is unsatisfactory and calls for reforms. However, at present the Supreme Court seems unlikely to change course, while the political parties are unable to agree upon the nature and extent of the changes that are needed.
The writer is a former minister of justice (2007-2009) and the author of ‘The Purse and the Sword – The Trials of Israel’s legal Revolution’ (translated by Haim Watzman, Oxford University Press, 2016)