What to do about Israel's legal crisis

We need to balance judicial independence with the need to reflect the polity's values.

By AMNON RUBINSTEIN
supreme court 298.88 (photo credit: Ariel Jerozolimski [file])
supreme court 298.88
(photo credit: Ariel Jerozolimski [file])
Let's start with a truism: Israel has courts of law which have justifiably acquired an excellent reputation worldwide. Israel's Supreme Court bravely established and defended human rights and civil liberties before the Knesset adopted a Basic Law protecting human dignity and liberty. Israel's courts have become synonymous with independence and legal courage - and even in present-day Britain where it has become fashionable to openly and harshly criticize Israel, British courts do not hesitate to cite Israeli legal decisions. If this is so, why change anything? Because some changes are needed as a result of specific problems created in recent years. In 1992, this author initiated the two basic laws that entrench human rights and place them above ordinary legislation, thus empowering the courts to rescind ordinary acts of the Knesset which are incompatible with the two basic laws. This was, as former chief justice Aharon Barak put it, a constitutional revolution. It should have entailed a Supreme Court whose composition is more suitable for these purposes. Reviewing legislation rightly involves value judgments dealing with primary issues of Israel's nature as a Jewish and democratic state. A COMMITTEE headed by former Supreme Court justice Yitzhak Zamir which dealt with the nomination of judges, rightly rejected the idea that the courts should be representative of the electorate, but accepted the idea they should reflect "as much as possible" the fabric of society. This principle should be applied, so held the committee, to the composition of the Supreme Court: "The principle of reflection is extremely important here, as this court maps the way in crucial matters of values and principle." Moreover, the committee concluded in its careful language: "Although the judges' appointment committee gives weight to the principle of reflection, it cannot yet be said that this principle has been fully applied to the Supreme Court." Since then, not much has changed regarding the composition of the court, except for the very encouraging appointment of an Arab judge. On the contrary, in recent years, a certain feeling of unease persists with regard to this subject due to both an arbitrary rejection of suitable candidates and preferential treatment given to former Ministry of Justice officials. True - contrary to common allegations, the Supreme Court is not homogeneous. In the matter of Palestinians' rights to immigrate to Israel for the purpose of marriage, the court was sharply divided: with a majority of one, it decided not to declare null and void a Knesset law which prohibited such immigration. Nevertheless, a majority of judges did recognize in principle the right of tens of thousands Palestinians to settle in Israel, while in the Knesset and the public at large an absolute majority is against it. If one justice had changed his mind and a majority of one had decided to nullify the Knesset's law, a grievous constitutional crisis would have ensued, culminating perhaps in the repeal of the Basic Law that entrenches Human Dignity and Liberty. WHAT IS the solution to these problems? The Knesset must once and for all regulate the issue of judicial review of legislation through a basic law which would state that only the Supreme Court can nullify the Knesset's laws. and that it requires a special majority in a nine-member court. This same Basic Law should also stipulate a special procedure in which a basic law itself can be altered. Additionally, the Knesset may pass a Basic Law, similar to that incorporated in a Canadian Charter of Rights and Freedoms, which would enable the Knesset to temporarily override a provision in any Basic Law. Such a law, providing for an override, must require a majority of 70 MKs and not be content with a simple majority of 61 MKs. The reason for this is that such a deviation from the provisions of the Basic Law must require more than the support of the coalition government members, and must get the support of at least part of the opposition parties. Such an override law should be limited in time - a five-year duration seems reasonable - and should not be extended indefinitely. If the Knesset wants to extend the override provision after a five-year period, it should do it, if at all, by amending the Basic Law itself under the above-mentioned special procedure. AS TO the nomination of judges, Israel must safeguard its asset of a non-political appointment procedure through a committee in which the politicians are a minority force. Nevertheless, the committee itself should be enlarged so that it can perform its duty to have a "reflective" judicial system. This could be achieved by coopting two non-political members such as academics, appointed by the presidents of universities and colleges. Similarly, one could envisage a distinction between appointing candidates for the Supreme Court, where the present three justice members should be retained, and the appointment of judges to lower courts, where representatives of these courts should replace one or two of the Supreme Court judges. In this way, the total independence of the courts could be upheld, and at the same time ensure a more "reflective" court, as well as enable the Knesset to temporarily override a specific provision in a Basic Law without abolishing all of it. The writer, a former MK, is a law professor at the Herzliya InterDisciplinary Center (IDC).