Last Thursday, in an address before the Association for Public Law’s annual
conference at the Dead Sea, Supreme Court President Dorit Beinisch launched an
unhinged attack on the Knesset and the government.
Israel’s elected officials of “inciting against the judges” through their
proposed legislation that would place minimal constraints on judicial
In her words, “For the past few years a campaign has been waged
that is gaining strength whose goal is to weaken the judicial system and first
and foremost the Supreme Court. This is a campaign of delegitimization being led
by a number of politicians, members of Knesset and even government ministers.
They provide the public with incorrect and misleading information that has
deteriorated into incitement directed against the court, its members and its
Beinisch claimed that the attempts by Israel’s elected
leaders to curb judicial power places the country on a slippery slope whose
ultimate end is to destroy the values that underpin Israeli democracy. After she
stepped down from the podium, her associates briefed journalists without
attribution that Beinisch believes that the bills being debated are comparable
to Nazi legislation barring Jews from the public square.
professional godfather, retired Supreme Court president Aharon Barak, enacted
his “judicial revolution” in the 1990s, Israel’s judicial system has been
without parallel in the Western world. Under Israel’s judicial selection system,
judges effectively appoint themselves. And since Barak’s presidency of the
Supreme Court, justices have used this power to ensure ideological uniformity
among their ranks. Jurists opposed to judicial activism have been largely
blocked from serving on the High Court, as have jurists with non-leftist
Not only do Israel’s judges appoint themselves, they have
empowered themselves to cancel laws of the Knesset.
dictatorial assertion that “everything is justiciable,” the Court has given
standing to parties that have no direct – and often no indirect – connections to
the subjects of their petitions. In so doing, the Court has managed to place
itself above the government and the Knesset.
In recent years, the Court
has canceled duly legislated laws of the Knesset and lawful policies of the
government and the IDF. Its decisions have involved everything from denying Jews
the right to build Jewish communities on Jewish land, to requiring the state to
compensate Palestinians for damages they incur while fighting Israel, to
changing the route of the security barrier, to barring radio broadcasts by the
right-wing Arutz Sheva station.
The Knesset’s efforts to pass laws that
would curb the Court’s now unlimited powers are simply attempts to place minimal
legal checks on judicial power. One bill under discussion would require Supreme
Court nominees to undergo hearings at the Knesset before their nominations are
approved. Under the proposed law, the unelected Judicial Appointments Committee
would remain responsible for nominating and approving justices.
that the public, through its representatives in the Knesset, would have the
opportunity to find out a bit about who these people are before their
appointments are voted on.
Another proposed law would seek to water down
the legal fraternity’s control over judicial appointments by making a slight
change in the composition of the Judicial Appointments Committee.
of these laws passed tomorrow, Israel’s Supreme Court would still be more
powerful than any other Supreme Court in the Western world. The government would
still have nearly no say in who gets appointed to the bench.
and her associates have no interest in considering the substance of the bills
being debated. For them the very notion that mere politicians dare to consider
placing any check on judicial power is such an outrage that they feel justified
equating the initiatives with the Nuremburg Laws in Nazi
BEINISCH IS not alone in her campaign to demonize politicians
who question Israel’s out-sized judicial dictatorship. Attorney-General Yehuda
Weinstein has used his powers of office to intimidate and threaten Prime
Minister Binyamin Netanyahu and his government into backing away from all the
proposed bills aimed at curbing judicial power.
Speaking at a legal
conference in Eilat last Tuesday, Weinstein bragged that he forced Netanyahu to
table discussion of the bill that would require Knesset hearings for Supreme
Court nominees. As he put it, “When the law that would institute a hearing came
to my attention, I called the prime minister and told him that this bill will
not pass and must be eliminated now and immediately.”
After relating that
Netanyahu responded that he would end discussion of the bill, Weinstein
proclaimed that anyone wishing to reform the judicial system would find in him
“a bitter, stubborn enemy.”
This week, Weinstein struck again. On
Tuesday, he sent a letter to Netanyahu in which he demanded that the premier
drop discussion of a Knesset bill that would restrict foreign governmental
funding of Israeli-registered political NGOs. Weinstein informed Netanyahu that
he would refuse to defend the law when it is challenged before the Supreme Court
because he considers it “unconstitutional.”
Faced with Weinstein’s
threat, on Wednesday Netanyahu’s office told the media that the prime minister
has decided to postpone discussion of the bill. Until Wednesday, Netanyahu had
openly supported one of the versions of the proposed law.
decision to constrain Netanyahu’s governing authority is not new. In January,
after the Government Appointments Committee approved Netanyahu and Defense
Minister Ehud Barak’s decision to appoint Maj.-Gen. Yoav Galant as IDF chief of
staff, and after the government approved his appointment, Weinstein informed
Netanyahu that he would refuse to defend Galant’s appointment before the High
A previously unheard of NGO called The Green Movement had
petitioned the Court demanding that it cancel Galant’s appointment. Galant had
wrongly used state land adjoining his homestead on Moshav Amikam. And the Green
Movement claimed that this administrative infraction rendered him unfit to
command the army.
It is impossible to know how the Supreme Court would
have ruled on the Green Movement’s petition. On its face it was fatuous given
that Galant’s behavior constituted an administrative offense for which one pays
a fine, rather than a criminal offense for which one goes to jail.
event, the Court never considered the petition because Weinstein told Netanyahu
that due to his own “ethical” misgivings, he would refuse to defend Galant’s
appointment. Left without legal defense, Netanyahu gave in to Weinstein and
canceled Galant’s appointment.
In openly undermining the Knesset and the
government, Weinstein is behaving in a manner that is contrary to the law.
Israeli law prohibits government officials from undermining the lawful
functioning of both elected arms of government.
And yet, in the name of
protecting democracy, or protecting the constitution, (Israel has no
constitution), Weinstein openly flouts the authority and rejects the
prerogatives of the people’s elected representatives in the Knesset and the
And he is not alone. In February, the Knesset passed a law
requiring NGOs to publish on their websites quarterly reports on all the
contributions they receive from foreign governments. Ten months later, the law
has yet to be implemented.
The delay is due to the fact that the Justice
Ministry has not bothered to publish the law’s accompanying regulations. Without
such regulations, the law cannot be implemented.
ON THE face of it,
Beinisch’s and Weinstein’s vociferous opposition to attempts to constrain
foreign government funding of Israeli-registered anti-Israel NGOs makes little
sense. Why would they stick their noses out for groups like B’Tselem or Yesh Din
or Adalah that seek to delegitimize Israel’s right to defend itself, or support
economic and legal warfare against the country? Why are they sticking their
noses out for these radical, anti-Zionist groups? Upon consideration, however,
the reason is clear. The Court’s ability to dictate government policy is
dependent on the existence of these political NGOs. The Court cannot constrain
IDF counterterror operations if it isn’t asked to intervene by NGOs. And the
attorney-general cannot scuttle legislative initiatives or government policies
or appointments if he cannot assume that his colleagues in the NGO sector will
challenge those initiatives and policies before the Court.
an expensive business. To continue their legal campaigns against the
prerogatives of the government and the Knesset in the High Court these NGOs
require enormous budgets.
Without foreign governmental funding, the likes
of Peace Now, Adalah, Ir Amim, Gush Shalom, B’Tselem and others would be forced
to curtail their legal campaigns against the state.
So Beinisch’s and
Weinstein’s attacks on politicians who introduce bills to curb foreign
governmental funding of these political NGOs are perfectly reasonable. No, in
protecting these groups they are not demonstrating their commitment to civil
rights. They are the judicial equivalent of street toughs, protecting their
It is important to note that the legal fraternity would never
be able to maintain its choke-hold on the government and the Knesset without the
active support of the media. Although Beinisch claimed last week that some media
institutions are active participants in the politicians’ supposedly nefarious
propaganda war against the Supreme Court, the fact of the matter is that
Israel’s mainstream media is the legal fraternity’s most fervent
Since Barak began his judicial revolution in 1995, the media
have portrayed the Supreme Court’s usurpation of the powers of the Knesset and
the government as acts of enlightened guardians of democracy. Radical
commentators like Moshe Negbi and Dana Weiss have attacked as anti-democratic
all politicians and legal experts who criticize the Court’s runaway judicial
activism. In recent months, the media have demonized Knesset members like Yariv
Levin and Ze’ev Elkin from the Likud and Faina Kirschenbaum from Israel Beiteinu
as enemies of democracy for their leadership in pushing judicial and NGO reform
laws through the Knesset.
For the past decade and a half, the Court’s
undermining of Israel’s elected leadership has weakened democracy and subverted
the public’s will. Over the past decade, Israeli voters have rejected
overwhelmingly radical political parties like Meretz. But through the Supreme
Court and the legal fraternity, their allied foreign government- funded
Astroturf pressure groups, and the supportive media, the values and views
advocated by Meretz have been forced down the public’s throat over and over
And now, for the first time, in recent months our elected
representatives have launched a brave and concerted effort to reinstate the
sovereignty of the Knesset. Their modest initiatives are aimed at restoring the
power of the people through our elected representatives to determine the course
of the country and to implement policies that reflect our interests and our
The incendiary howls of the likes of Beinisch and Weinstein show
us that these initiatives are well-placed. After years of constant attacks on
our democratic system, the powerful legal fraternity is finally on the
This fight could not be more important to the well-being of
this country. Now is no time for our leaders to go