This past week, Ayelet Shaked, Israel’s Minister of Justice, (“the Minister”) announced that if she is re-elected and retains her ministerial post, she intends to revolutionise the judicial system in the first 100 days of her tenure and she set out the items that comprise her “revolutionary” agenda.
As a Canadian lawyer who laboured in the Federal Department of Justice which is headed by the Minister of Justice who is also the Attorney General (A.G.) and has been following the Israel’s Supreme Court (“the Court”), I would like to contribute a Canadian perspective to the reforms proposed by the Minister and suggest additional reforms that would complement the ones she proposes.
For the record, I am neither a left winger nor a right winger but am committed to enhance the performance of the judicial system and of the administration of justice and increase the citizens’ faith in the judiciary’s integrity and credibility, in Israel which has been plummeting of late.
- a) The process of selection and appointment of the judges of the Supreme Court
The Minister proposes to abolish the current nomination system where the sitting judges of the Court play an important, and at times a crucial role in the selection of the new judges. Instead, she proposes to present a single candidate to the government and to the Knesset. The candidate then appears before the Knesset for a public hearing to determine whether the candidate satisfies the expectations of its members. This would be followed by the candidate’s appearance before a public commission about which no specific information is provided.
While prima facie the proposal is not unreasonable, the merits of it cannot be assessed until the Minister provides full particulars of the entire process and what would happen when the process produces conflicting outcomes before the Knesset and the public commission. For example, will the Knesset appearance be before the entire assembly or a committee of it in order to pre-empt the risk of the former turning into a zoo of sorts.
I would suggest instead a simpler process whereby the government appoints an Independent Advisory Panel operating at arm’s length from the government, which investigates the professional and personal records of all the applicants/candidates and presents the Prime Minister via the Minister of Justice, with a short list of candidates ranked by descending order of relative merit based on qualifications, and personal suitability. From this list, the Prime Minister would select one, but preferably a number of candidates, and submit their names to the Knesset via the Minister of Justice. A committee of the Knesset would then interview the candidates in a public hearing; select those which it deems to be fully qualified and recommends them to the Prime Minister who in turn, upon consultation with his Cabinet selects the successful candidate(s) and the Cabinet makes the appointment(s) depending on the number of vacancies in the Court. I would suggest that where the number of candidates found to be qualified exceeds the number of existing vacancies, the names of the candidates who are not appointed be placed on a waiting list with a lifetime of one or two years to fill the vacancies that occur during that time period..
It has been argued that such a process leads to stacking the Court with judges who share the world-views, values and philosophy of the party in power and in turn render judgments consistent with these.
As we say in Canada, what is good for the goose is good for the gander. If a left- wing secularist government is entitled to appoint judges who share its world-views, values and philosophy, surely a conservative or a right-wing government is entitled to do the same.
At all events, it does not always work that way. In many instances, the judges – that is judges who are not captives of a particular ideology and not fixated in their thinking, grow with the job and periodically re-visit and re-asses their world-views, values and philosophy in the light of their experiences in a wide variety of cases.
My serious concern with the role played by the Knesset in the process is that given Israel’s the combative political fragmentation, the appearance of a candidate before the Knesset may result in the kind of repulsive partisan show put on by the Democrats during the Senate confirmation hearings of President Trump’s most recent appointee to the Supreme Court who somehow managed to survive the hearing.
A fundamental rule in the process of selection and appointment of judges is to protect the confidentiality of the process and to insure that the process does not affect adversely the personal and/or professional reputations of the candidates.
I fear that the involvement of the Knesset may well result in the breach of this fundamental rule and therefore ought to be avoided as one such breach is too many.
Finally, fearful of the potential consequences of an appearance before the Knesset, its involvement in the selection process may and will likely deter some worthy candidates from applying for the position.
- b) The appointment of the Chief Justice
Currently, the Chief Justice of the Court is selected by the members of the Court. Likewise, the Minister most likely will change the selection process of the Chief Justice. Again, I think the Prime Minister should be the one to select the Chief Justice, presumably after consulting with Cabinet.
- The Oath of Office
The Israeli Oath of Office for the Supreme Court judges reads: “I pledge myself to be in allegiance to the State of Israel and to its laws, to dispense justice fairly, not to pervert the law and to show no favour.” (Italics mine)
A distinguishing feature of the Oath, is that it includes an oath of “allegiance to the State of Israel and to its laws” and “not to pervert the law”; wording that is absent in the oaths of their Canadian and American counterparts. I believe that the problems identified by the Minister require the reconsideration of the wording of the Oath.
What does it mean to be in allegiance to the State and to its laws? What does the further pledge not to pervert the law mean in the context of a judicial appointment?
Does the allegiance to the State refer to an allegiance to the values, ideals and objectives of Zionism which led to the creation of the State and whose legal values in terms of human rights and freedoms are stated in the Declaration of Independence and in the Basic Law: Human dignity and Liberty?
Does it refer to the solemn duty of the judges to respect and not to usurp the respective jurisdictions, authority and powers of the two other constituent parts of the State: the executive and the legislative? Or Is it both?
Having regard to the criticisms levelled against the Court, I would have thought that the Minister would also revisit the Basic Law: The Judiciary, with a view to
- Provide definitions of the concept of “allegiance to the State and to its laws” and of the phrase “pervert the law”; and
- Insert into the Oath, the solemn promise not to usurp the respective jurisdictions, authority and powers of the executive and of the Knesset; something which the Court is known to do.
III. A. The Minister’s proposed solution to prevent usurpation of the jurisdiction, authority and powers of the Knesset by the Court
The Minister proposes that in order to prevent the Court from usurping the jurisdiction, authority and powers of the Knesset , she will seek the enactment of the so-called “override clause” that would give the Knesset the legislative authority to overturn a Supreme Court decision that strikes down legislation as unconstitutional by a simple majority of votes.
The curious thing about the proposed solution is that it does not afford the same protection against judgments of the Court that usurp, the jurisdiction, authority and powers of the executive branch which the Court is also known to do that too.
III.B. Can the Court strike down legislation on the ground that it is unconstitutional in a country that has no formal written Constitution or an unwritten one to which the government and the Knesset subscribe and not even a proper Charter or Bill of Human Rights and Freedoms?
In fairness to the Supreme Court, how was and is the Court to administer justice
- In the absence of a Constitution; a proper Charter or Bill of Human Rights and Freedoms, or a Chart of National Values, and
- When the litigants invoke competing values, rights and freedoms which on the facts of the case could not be reconciled-,what was and is the Court to do?
It did its best it by relying on the sloppily drafted Basic Law: Human Dignity and Liberty that does not even provide a definition of the phrase “human dignity” and of the term “liberty”, and took inspiration from some of the relevant material wording of the Declaration of Independence.
And it also did what courts all over the world faced with similar situations do. It borrowed, from foreign legal systems, and where it could, it supplemented the borrowings by invoking such things as
- a) the mythical “universal values” writ large without necessarily factoring in the distinct Israeli variations of such values and value preferences;
- b) the “the basic principles of the legal system” whose contents remain somewhat nebulous. It also sought inspiration and wisdom in dry international theoretical writings which obviously cannot address the specific facts before the Court and the specific values, rights and freedoms at play in the Israeli society.
In the end, the Court overcame the fundamental deficiencies, by progressively and incrementally formulating a Charter of Rights and Freedoms, and a set of principles as a working unwritten constitution in order to discharge its mandate. The fact that these turned out to be not to the liking of a “Real” right -wing Minister of Justice who is not initiated into juridical thinking and reasoning, is neither here nor there.
- Values: whose values?
Ideally, the values in issue in the cases before the Court must be those shared in the Israeli
society. However, Israel is a complex society and its value system in some instances, is fragmented not to say conflicted. When one of the litigants pleads and calls evidence to demonstrate that, the shared values at play in a particular case are different than the so-called universal values of comparable societies, the Court must determine the relative merits of the case having regard to the specificity of the value in issue.
Yet, in at least one instance, the Court shafted a specific shared values in the Israeli society that are at odds with values of the Western world, as for example the Israeli Arab and Jewish preferences to live in their own separate ethnic communities; and in the result the value became victim of abstract universalism that prevailed over particularism.
III.C Values, rights and freedoms are not absolute: Weighing values, rights and freedoms
Values, as is the case for rights and freedoms, are not absolute. In fact, when in any litigation, the parties invoke and rely upon competing ones; the Court is required to determine the relative weight, if any, to be given to each of these on the particular facts and the issues at play of each case.
Further in the absence of such evidence, one should not be surprised if the value preferences and weighing of an average Israeli person in the street with particular demographic and other social, cultural attributes may well be different than those of the sophisticated judges of the Court and that instinctively seem to prefer theirs in the weighting process.
III.D. Basic Law: Human Dignity and Liberty
The law comprises as Hodge podge of rights some of which, such as privacy and confidentiality are usually covered under separate legislation.
It is a poorly drafted law. More specifically
First, section 1 of the law declares that “The purpose of this Basic is to protect human dignity and liberty, in order to establish in a Basic Law, the values of the State of Israel as a Jewish and democratic state.” Yet the law fails to state of the specific values of Israel as the Jewish state and those of Israel as a democratic state contemplated by the law particularly since a lot of these values overlap.
Second, in a bizarre turn of drafting, section 8 reads: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.” (Italics mine).
Why on earth would a law befitting the values of the State of Israel violate the specific rights enumerated in the Basic Law since these rights are shared and cherished by both the Israeli Jews and minorities?
As a matter of fact, surely none of the provisions of the recently enacted nation-state law are inconsistent with the protection of human dignity and of liberty as circumscribed by the rights granted under the Basic Law.
Third, to the wording of section 12 which reads “…[the] law cannot be varied, suspended or made subject to the conditions of emergency or made subject to conditions of emergency “. Yet, strangely enough, the proviso proceeds to demonstrate that the law is indeed subject to state emergency regulations that provide “for the denial or restrictions of the enumerated rights…provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.”
While I can understand that historical and political circumstances and may have required the framing and insertion of sections 8 and 12, I would suggest to the Minister that it is high time to repeal and to replace it by a properly drafted Charter of Rights and Freedoms.
The answer to the question in III.B.
Clearly, the Court’s own answer to the question is or would be that in a country that has no formal Constitution or even a proper Charter or Bill of Human Rights and Freedoms, the Court’s interpretation and application of the Basic laws on human dignity and liberty, and other matters; the values rights and freedoms articulated in the Declaration of Independence and the cumulative constitutional principles which the Court has been formulating on the go over the last 70 years, constitute a bona fide unwritten Constitution substantively similar to those of most western constitutions. At all events, if the High Courts of Great Britain can operate without a written constitution, so can Israel.
In the result, the Court considers it proper to hold that the legislative breach of this body of laws and judicial precedents are tantamount to a breach of that part of the unwritten or rather partly written constitution and therefore may be declared unconstitutional.
III.E. Israeli Charter of Rights and Freedoms
I suggest that it is high time for Israel to acquire a well -drafted proper Charter or Bill of Rights.
In this regard I would strongly recommend the Minister to give serious consideration to the provisions and wording of the “Canadian Charter of Rights and Freedoms” enacted by the Parliament of Canada in 1982 and in particular to sections 1 and 33, among others, where she may well find the solution to the problems in question.
Section 1 reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 33(1) reads:
Parliament or the legislature of a province may expressly declare in an Act Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 [Fundamental freedoms] or sections 7 to 15 [ certain legal rights]
In Canada, where a superior, appellate or the Supreme Court declares a piece of legislation or one or more provisions of one to be unconstitutional, the skies do not fall although its politics may sometime gets into some wrinkles. In such instances, the Court instead of striking out the impugned provisions or legislation, although it can do so, out of respect for Parliament, usually suspends its operation for a specified period of time depending on the nature of the issue or problem at hand. In such instances, the government may proceed by way of appeal in the first two levels of courts or regardless of the level of court proceed to fix the problem with the legislation in keeping with the Court’s reasoning.
III.F. The Minister’s proposal revisited
The proposal to grant the Knesset the legislative power to override decisions of the Court which declare a legislation to be unconstitutional strikes me as the proverbial cure which is worse than the disease.
If nothing else, it is the reverse of the problem the Minister complains about; namely, the Court’s usurpation of the jurisdiction, authority and powers of Knesset.
I submit that the proposed measure would
First, subject the Court’s decisions in constitutional matters to the whims and fancies, the flavour of the day so to speak, of the Knesset;
Second, give the legislative body, the unfettered discretion to rescind the constitutional decisions of the Court which may not be to the liking of half plus one members of the Knesset and in the process, in constitutional matters, turn the Court into an appendage of the Knesset.
Third, the proposed solution would plunge the country into periodic serious political crisis, something which Israel, besieged by aggressive and destructive enemies as she is, can do without.
Fourth, it is said with a touch of humorous exaggeration that in litigation nothing but costs are certain. Be that as it may, potential litigants, among other things ,need a) a stable legal regime; b) consistency in judicial decisions and outcomes, and last but not least, c) finality of proceedings, in order to do a realistic risk-assessment of their proposed action in order to decide whether or not they should proceed with it and invest the necessary funds to litigate it.
Taking the last requirement first, where would the litigants be left and what are they supposed to do while the government or a segment of the Knesset pushes for an override and the matter drags on with no end in sight or a unpredictable outcome? And what about cases where an override may or does have a variety serious negative consequences for one or both of the litigants and others?
The proposal strikes me as the thinking of an arrogant government and legislature who want to have their way always while the Court is shown the highway.
Handing the legislators the power to override the decision of the Court presumes that somehow beholden as they are to the views of their respective political constituencies, they are wiser than the Supremes. A rather dubious proposition that smells of populism of the worst kind. It is a solution that, possibly save for rare exceptions, respectable western democratic states as a whole would not care for it.
III.G Two alternative approaches:
- The preventive approach: References to the Supreme Court or to a Constitutional Court
In order to deal effectively with a Bill the government proposes to table or a Bill in the after it has been tabled, which is highly controversial both in and out of the Knesset and encounters strong opposition to its enactment on constitutional or other grounds, I would recommend that the government or the Knesset ought to be granted the legislative authority to refer the Bill to the Supreme Court or to a Constitutional Court.
The object of the reference is to seek the opinion on the validity of the legal objections to the Bill. A broadly similar process exists in Canada and is commonly referred to as “a reference”. These references, for the most part, if not almost exclusively, deal with constitutional issues.
Both the short and the long terms benefits of this procedure are self-evident. By way of illustration, the Nation- State Law would have made a wise choice for a reference.
- The establishment of a Constitutional Court
An alternative remedy to go about fixing the matter that irritates the Minister and others would be to establish a Constitutional Court whose mandate would be to review the decision of the Supreme Court to determine,
First, whether the Court erred in characterising a particular issue as being of constitutional nature; and
Second, the correctness of the decision of the Court on the constitutional issues raised by a case.
The judgment of the Constitutional Court would be binding on both the government and the Knesset.
IV.A. The problem with the Supremes sitting as judges of the Superior Court
A peculiar feature of the organisation of the Israeli Courts is the provision whereby the Supremes also sit as judges of the Superior Court. In the result, the parties appearing before the Superior Court effectively lose their rights of appeal to the Supreme Court or are deterred from proceeding with the appeal on the premise that one segment of the Bench is unlikely to overturn the decisions of another segment of the Bench . And if a formal right of appeal does exist, the probabilities of the former ruling against latter must be very rare indeed.
In the circumstances, the Minister may wish to a) reconsider the present arrangement b) repeal the provisions that constitutes the Supremes’ as judges of the Superior Court ,and c) to appoint a new set of High Court judges.
IV.B. Reducing the size of the Supreme Court and the suggested process of reduction.
The benches of the Supreme Court of Canada and of the United States consist of nine judges, In Canada judges may sit in panels of 3 (for motions) 5, 7 or 9, depending on nature of the case, to hear appeals.
To date, the Supreme Court has shown a lack of discipline by indiscriminately allowing multitudes of interveners on the quasi-principle “come each , come all.”
I am not sure as to the best way to deal with it, save and except to insert a provision in the Basic Law: Judiciary defining the requirements for and the circumstances under which a person or organisation may be entitled to intervene while granting the Court a residual discretion where the Court is faced with an extraordinary situation.
- Standing-applicants and plaintiffs
Likewise, I would suggest that the Basic Law also be revisited with a view to insert a provision defining the concept of standing and the requirements for and the circumstances under which a person or an organisation has standing to be an applicant or a plaintiff.
Under such an arrangement, the Israeli Supreme Court should experience no difficulty in discharging their respective mandates and would certainly not experience any difficulty in discharging its mandate with time to spare for one or more of them from time to time to conduct judicial inquiries, at the request of the government with respect to matters of public interest where a judicial authority and temperament is required.
IV.C. Process of reconstituting a Bench of nine judges
In the event, the Supremes are barred from sitting in the High Court; clearly the number of judges currently sitting on the Court will be excessive.
In the circumstances, the Minister of Justice would be justified, in setting up the modified process which I outlined above to select the members of the reconfigured Court who will continue to sit on the Court on a full time basis and to appoint the rest of the judges as “supernumeraries” who, from time to time, may be called upon by the Chief Justice to sit as one of the nine judges.
The process to achieve this end would be to nominate all the current Supremes for the nine positions let the Knesset and the public commission rank order them in descending order of relative merit and submit the list to the Prime Minister via the Minister of Justice. The former will then proceed to select from the list the panel of nine judges.
In order to proceed in this manner, it will be necessary to revisit the provisions of the Basic Law: The Judiciary, governing the nature of the tenure of judges of the Court and if necessary amend it so as to address the matter at hand as a one- time basis.
- Definition of the jurisdiction of the Court
In the context of the reforms contemplated by the Minister, one that ought to be considered on a priority basis is the definition of the jurisdiction of the Court in a number of areas including, by way of illustration, the following:
- Judicial affirmative action for the benefit of minority groups
Based on at least one decision with which I am familiar, the Supremes appear to engage in affirmative action in favour of an Israeli Arab by refusing an Israeli Jew the right granted to the former in situations that appear to be undistinguishable on the basic facts.
The Minister may wish to consider enacting a provision prohibiting the Court to engage in affirmative action, save where affirmative action in question is authorised by legislative provisions that specifically provides for such action by the judiciary.
- Eligibility of political parties and/or one or more its members to run for election to the Knesset
Given the recent considerable controversy concerning the decisions of the Court in the Ben Ari and the two other cases, I would suggest, that if the government and the Knesset are unhappy with those decisions, as they ought to be;
- To interpose a revamped High Court between the Supreme Court and the appellants;
- To legislate specifically that the jurisdiction of the courts in reviewing the decisions of administrative boards is limited to determining solely whether the board or the court below erred in law by failing to adjudicate upon the matter with due deference to the board’s expertise and the evidence before it, and to uphold the decision of the board, save in circumstances where the board’s decision is clearly and incontrovertibly perverse.
- The position of Attorney –General in Israel
The office of the unelected Israeli Attorney General (A.G.) which provides legal services to the government and has carriage of the public prosecutions is a rather peculiar one. It is noteworthy by the rather bizarre adversarial and sometimes downright hostile relationship of the Attorney-General with the government, the Ministers of the various departments and in particular with the Minister of Justice.
In this context, Minister proposes that the Minister of each government department have a say in the selection of the legal advisors assigned to their respective departments by the A.G.
The proposed reform is hardly likely to make a significant ameliorative dent on the nature and scope of the serious issues and problems besetting these conflicted relationships. The Minister’s seeming reluctance to proceed with more radical proposals to address these problems may be due to other complicating factors as well as the demands of her revolutionary agenda.
In Canada, the Prime Minister appoints a Member of Parliament from his party to the Cabinet to head the Department of Justice. In the process, the incumbent of the position acts as both the Minister of Justice and the federal Attorney General of Canada. This process is replicated by the governments of the provinces.
As Minister of Justice, the incumbent acts as the legal advisor to the government as a whole and to all the government departments and units (“clients”) through Justice’s departmental legal services units located in each Department and manned by Justice lawyers assigned to these units.
Needless to say, every department head, upon showing just proper cause, can request the Minister of Justice to remove a Justice lawyer from the departmental legal services. Generally, these things when they occur, quite rarely at that, are done informally by transferring the lawyer to another legal unit.
Otherwise, the Minister of Justice’s relations with the other Ministers are of a collegial nature.
On the other hand, broadly speaking, the A.G is responsible for the management of civil proceedings before the Courts and Tribunals in which the government is involved and takes its instructions from the client government department or unit and acts in accordance with these.
The public prosecutions are conducted by the Director of Public Prosecution (D.P.P). As a matter of law, the D.P.P enjoys prosecutorial independence from government direction and intervention. Any attempt by the government to interfere with the prosecutorial decision- making leads to a political crisis from which the government may or may not politically survive or recover.
Nevertheless, the Attorney-General has the discretionary power to intervene in prosecutorial decision-making, if, upon due diligence s/he is satisfied that the D.P.P’s decision to prosecute or not to prosecute is faulty in law and to instruct the D.P.P accordingly. The decision of the A.G to intervene is a matter of public record.
One thing for sure, the A.G. cannot initiate, act, plead or intervene in any matter independently of the government or in effect adopt a position that diverges from that of the government, nor argue the government’s case half-heartedly because s/he does not wholly agree with it or in facts is opposed to it.
The A.G is required to act in accordance with government policy and legal position and failing that to resign an d failing that Prime Minister , if he so chooses may fire the incumbent sand drop him or her from the Cabinet or shift the person to another department. And save for most unusual and extremely rare instances, the system works very well.
The Minister may wish to consider taking the necessary legislative steps to abolish the Office of the Attorney General and to adopt the Canadian system.
VII. In defence of the Supreme Court
Save for the problems identified in this paper some of which the Minister plans to remedy the Minister’s attack on the Court are patently unfair and motivated by political partisanship.
Besides the matter of how the Court addressed and overcame the fundamental deficiencies of the Israeli legal system which I addressed above, the fact of the matter is that it was not the Supremes but the government of the day that established the process of selection and appointment of the Supremes, of the Chief Justice and determined the jurisdiction of the Court sitting both as judges of the Supreme Court and of the Superior Court of Justice.
Further, the fact that the governments of the day appointed judges whose world views and values corresponded to theirs and enabled the self-perpetuation of these views and values through the process of selection and appointment instituted by these governments and which the Minister wisely seeks to dismantle are not matters that can be reproached to the Court.
The final fact of the matter is that until the Minister’s arrival on the scene, the successive Netanyahu governments of the last 10 years did nothing of significance or effectiveness to address the systemic problems identified by the Minister.
Hence, if the Minister is keen on pointing the finger, she ought to point it to the successive Netanyahu governments for starters.
And if the Minister cannot get the government to agree to a) draft a Charter of Rights and Freedoms and get the Knesset, to legislate it, and b) work towards giving the country a written Constitution, her successors at the Ministry would be right in pointing their fingers at her for the lack of any progress on both matters.
Indeed, nothing prevented the Minister or the government to designate the Nation-State law as the first tranche of the constitution and title it: The Constitution Act, Part I. While it is true that the Knesset fails to agree and may not fail to agree on the wording of certain parts of the Constitution, surely, there is no reason not to proceed with the other tranches which are not controversial as Constitution Act Part II and seq. And the Supremes would be hard put to challenge the Constitution of the country
Overall, the Minister’s action plan, save for the “override” legislation, is very much worth pursuing. If adopted by the Minister, the foregoing supplementary and alternative suggestions, are bound to lengthen the time needed to carry out the Minister’s agenda as it will certainly take more than 100 days to genuinely “revolutionise” the Israeli judicial system.
In the meantime, I am not comfortable with the idea of having a Minister of Justice who is not trained in law.
A final word
The Minister’s strident political partisanship in promoting her judicial reform agenda and her continuous personal and political attacks on the Chief Justice and members of the Court as a group are most unbecoming of the position she occupies.
The sad thing about this all this which I find repugnant, is that, save the override clause the reforms she proposes will benefit equally the Israelis, regardless of their ethnic identity, ideology and party affiliation as well as the successor governments including the left-wing