The retirement of Supreme Court President Dorit Beinisch provides an opportunity
to briefly discuss Israel’s legal revolution, and assess its
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
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.
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
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.
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
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.
developments led to the “overlegalization” of the whole system of government in
Israel, in which legal advice is required for every step taken.
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
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
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
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
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.
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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