Supreme struggle

How the new Supreme Court bill will strengthen democracy in Israel.

By DAVID KIRSHENBAUM
Supreme Court 311 (photo credit: REUTERS)
Supreme Court 311
(photo credit: REUTERS)
The United States should hang its head in shame for having a system of government that strangles its judiciary, undermines the doctrine of separation of powers and creates a tyranny of the majority. Similarly, it should be condemned for passing laws that stifle free speech, align it with third world countries and move the nation towards fascism. At least, that is, according to the critics of recently proposed Knesset legislation that would require candidates to the Supreme Court to be vetted by the Knesset’s Constitution, Law and Justice Committee.
With respect to Knesset involvement in the selection of Supreme Court judges, Attorney General Yehuda Weinstein joined with critics of the proposal, citing its “constitutional difficulties and concerns about the politicization of the judiciary.” The comment is telling. Israel, of course, does not have a constitution, written or otherwise. In genuine constitutional republics, the sanctity of a constitution stems, in large measure, from the fact that it is approved and can only be changed by the people or their elected representatives.
A constitution cannot obtain legitimacy by imposition of a king or president or by fiat of a Supreme Court head. It was former Supreme Court president Aharon Barak’s efforts to create a constitution for Israel in his own image by judicial diktat that has constituted the real assault on the doctrine of separation of powers in Israel.
In the United States, there is certainly no constitutional difficulty with the participation of elected officials in the selection of judges, as that process is mandated by Article II of the American Constitution. At last check, the United States is a thriving democracy with an independent and a powerful judiciary that shares power with the Executive (the President) and Legislative (Congress) branches of government. And a key component of that  balance of power is achieved via the authority granted to the President to nominate and appoint judges to the Supreme Court and the federal bench and to do so with the “advice and consent” of the Senate.
In practice, the process of selecting federal judges typically begins when the president receives recommendations from US senators in the states where there is a vacancy. In states where the two senators are from different political parties, there is even a common tradition for the President to accept recommendations from the two senators on a rotating party basis. In the case of the Supreme Court, presidents generally nominate someone they believe share their philosophy about government, the law, and the Constitution.
All federal court nominees are referred to the Senate Judiciary Committee, chaired by a member of the majority party, where the nominees can face hard-hitting questions. Committee members may also send the nominees questionnaires about their backgrounds and writings. The committee then makes its recommendations to the full Senate, which votes on the appointment. Has this major involvement of the Senate in the make-up of the Supreme Court and the federal bench brought about the "end of democracy" in the United States, a warning that typifies the hysterical critics of judicial selection reform in Israel?
Similarly, the proposed Knesset legislation that would limit foreign contributions made to political NGOs that "seek to influence the diplomatic or defense agenda of the State" has much in common with the Foreign Agents Registration Act passed by the US Congress in 1938 ("FARA") and its more recent amendments. It is instructive to read the background and purpose of the legislation, as expressed at the time by the House of Representatives' Committee on the Judiciary. It cited the many US persons who were "supplied by foreign agencies with funds and other materials … to influence the external and internal policies of this country, thereby violating both the letter and spirit of international law."
The purpose of the legislation, it continued, was to disclose "those who are engaged in this country by foreign agencies … for the purpose of influencing American public opinion on a political question." The Act was expanded in 1966 to prohibit political contributions and expenditures by foreign nationals. In recent years, there has been a reported increase in the number of audits by the US Department of Justice under FARA, which requires anyone taking actions in the United States at the direction or request of a foreign entity to register with the US government and make periodic disclosures about those activities.    India, a rather large democracy, passed a law in 1976, The Foreign Contribution (Regulation) Act to "regulate the acceptance and utilization of foreign contributions… to ensure that parliamentary institutions, political associations and academic and other voluntary organizations as well as individuals working in the important area of national life may function in a manner consistent with the values of a sovereign democratic republic." The Act bars the receipt of foreign contributions by any "organization of a political nature" without the prior permission of the government. (There is an absolute ban on foreign contributions to political parties.)
All not-for-profit organizations in India wishing to accept foreign contributions must register with the Government, accept such contributions only through designated banks, maintain separate books of accounts with regard to all receipts and disbursements of such funds, and report to the Government the amount and source of all foreign contributions, the manner in which they were received, the purpose for which they were intended, and the manner in which they were used.
By comparison, Israel's corresponding proposed law is extremely tame.  
So when Likud MK Benny Begin gravely opines that the recently proposed judiciary and NGO bills place Israel in company with Zimbabwe, and Shimon Peres warns that the bills constitute a "deviation from democracy," they are playing very loose with the facts. These proposed bills, aimed at strengthening separation of powers and democracy in the country, will put Israel in very good company with the strongest and largest democracies in the world.
The writer is an attorney in Israel and New York.