On the road to recovery from Israel’s legal revolution

The Israeli legal system was already undergoing a drastic transformation that began in 1983.

By DANIEL FRIEDMANN
February 19, 2012 22:51
Israel's Supreme Court

Israeli Supreme Court 311. (photo credit: REUTERS/FILE)

 
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The retirement of Supreme Court President Dorit Beinisch provides an opportunity to briefly discuss Israel’s legal revolution, and assess its aftermath.

Some 20 years ago, in 1992, the Knesset adopted the Basic Law: Human Dignity and Liberty. This promptly led former Supreme Court president Aharon Barak to declare the arrival of a legal revolution which empowered the court to invalidate Knesset legislation that did not conform to this Basic Law.

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Actually, at this stage the Israeli legal system was already undergoing a drastic transformation that began with appointment of Justice Meir Shamgar to the presidency of the Supreme Court in 1983.

Principles that were once considered elementary and religiously followed were replaced by rules that greatly extended the court’s power. The rule under which a petitioner to the Supreme Court needed to show “standing,” namely a personal interest that justified the application, had been abolished, thus opening the door to a flood of applications by every person who wished to take issue with any governmental or administrative decision.

In one case former justice Mishael Cheshin stated that although it was an exaggeration, “we can say that nowadays a person takes into his hands a newspaper... his eye glances over the news until it catches a particular item.

Having found what he found he calls upon his friends: let us rise and go up to Zion – to the Supreme Court. He speaks and acts. An application is submitted as if written in the course of the trip [to Jerusalem]...” These words did little to stop the practice and applications based mainly on facts publicized by the media are regularly submitted to the Supreme Court.

This development was coupled with the expansion of “unreasonableness” as ground for judicial review. As a result every governmental or administrative decision, including every appointment, became appealable. The range of applications seemed inexhaustible. It included, among others, petitions requesting an order to force the attorney- general to prosecute though he considered that there was no public interest in the indictment. The court did on occasion order him to do so.

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Petitions were also submitted to quash appointments to governmental positions on the ground that they were “unreasonable,” for example on the grounds of the candidate’s past misconduct or even because of statements he made that were not politically correct.

In one case an appointment was invalidated because the candidate expressed racial views (although he later apologized).

Nevertheless, during the period of Shamgar’s presidency the court remained cautious in matters of security and recognized, at least in principle, that matters in which the dominant elements were political were not justiciable.

When Barak became president of the Supreme Court in 1995, whatever restraints still remained on the court’s jurisdiction were soon to disappear.

Every issue was considered justiciable, and every governmental act or decision, including in the field of defense and security, could be examined by the court on the basis of its reasonableness.

As a result, the court became involved in military affairs even in the course of ongoing operations.

In fact, it became commonplace for petitions to the Supreme Court to be submitted within hours after the beginning of any military operation, relating to the mode of the operation, the supply of humanitarian aid to the civil population, etc. Army officers were summoned to the court while the operation was still going on with a demand to supply explanations and provide details of the events and the measures taken. The bottom line of these developments has been the transformation of the court’s function, from a tribunal mainly concerned with resolving disputes between parties into a body that regards its function as overseeing, and taking part in, the governance of the country.

These developments led to the “overlegalization” of the whole system of government in Israel, in which legal advice is required for every step taken.

The idea of the rule of law was turned into the rule of lawyers and judges. The work of the various branches of government was disrupted and the work of the court itself became confounded, as the line between cases that are legitimately within its province and those that should be confined to other branches became blurred.

Consequently, in the course of Barak’s presidency criticism of the court became more vocal and public confidence in the court dramatically declined. In the year 2000, former president of the Supreme Court Moshe Landau, who retired in 1982, gave a very exceptional interview to Haaretz in which he leveled a devastating attack on Aharon Barak and the Supreme Court.

Landau spoke of Barak leading the court the wrong way, and said that the court was getting involved in a morass of political opinions and beliefs, which was dangerous both for the state and the court. He said that court “displays arrogance and pretension” and added that “In The Republic, Plato suggested entrusting the government of the republic to a class of elders who were specially trained and educated for this purpose. It sometimes seems to me that most of the justices on the Supreme Court see themselves more or less as governing elders.”

Criticism also came from another direction. The Supreme Court had for many years dominated the appointments to the judiciary. There have been repeated allegations that appointments and promotions are not made strictly on merits. Doubts were also raised regarding the selection of children of Supreme Court Justices to do their clerkship in the court. It thus seemed that the court did not meet the standard that it sets for others.

Justice Beinisch was appointed to the Supreme Court shortly after the retirement of president Shamgar, who refused to appoint her. She became (with Justice Yaakov Tirkel) Barak’s first appointment. When she replaced Barak as president upon his retirement she was presumably expected to maintain his heritage. She has done her best, but this was mission impossible.

Public confidence in the Supreme Court dropped considerably and the high cost of the court’s overt activism became more and more evident. During the course of her presidency Ministers of Justice were unwilling to abide by the court’s wishes and the court lost much of the control it once had over appointments to its ranks. Eventually Beinisch had to accept the appointments of Justices Neil Handel and Noam Solberg, to whom she strongly objected.

Objections to the court’s activist approach are heard even within the Supreme Court. One of those critics is Justice Asher Grunis, who recognizes that not everything is justiciable and advocates great restraint in the use of unreasonableness as ground for invalidating governmental decisions. Grunis will become next president of the Supreme Court. After years of legal revolution, we may be on the way to recovery.

The writer is the former minister of justice and a professor at Tel Aviv University.

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