Judicial reform: A return to the sanity that once was

The noise against Justice Minister, Yariv Levin’s judicial reforms proposal is full of sloganeering, but fails to drill down. This is particularly disappointing, because much of the shouting is being done by trained legalists whose very job is to look at laws very closely and to make fine distinctions.

For a few decades now, the Supreme Court has been the institution in Israel with the least public trust, less than the government, the army or any other public institution. And the trust has been going down. Esther Hayut and her fellow defenders of the current order do not care too much about this problem because they are super-elitists. When Aharon Barak instituted the massive changes in the justice system which he called the constitutional revolution (but which really started with his predecessor Meir Shamgar), there was significant push-back from leading people within the legal establishment. Because then, unlike now, people remembered the three-plus decades prior to the revolution, during which our judicial system was much closer to the judicial systems around the democratic world.

I use the words “judicial system” and not just  the High Court of Justice because Barak’s revolution extended way beyond that. Anyone in any government ministry today knows that the lawyers appointed and embedded in their ministries have a veto power on any and every program, project, budget and decision. They are completely anonymous and below the radar, but they wield ultimate power.

So too, the Attorney General is no longer the government legal advisor and representative. Barak, during his own tenure as the Attorney General, turned the Attorney General into a supervisor and critique, with discretionary decision making as to whether he or she is prepared to represent the government in court, something they have often refused to do. When Barak reached the Supreme Court he ruled (in September 1993) that the (then Rabin) government was constrained to listen to the Attorney-General whose power extends to ruling on every facet of government running.  Hence, the transition of the Attorney-General from being its legal advisor to being its legal arbiter was completed.

Barak set up such a powerful system that several justice ministers who were opposed to how the Supreme Court was chosen and acting, made nary a chink in its armor. Two justice ministers were forced to resign before they even sat down, when the mysterious timing of charges were brought against them the moment they were appointed.

Barak created a system where “HaKol Shafit” – everything is justiciable, meaning that the Supreme Court does not exclude from its purview any aspect of law or society, or any governmental decision. In principle they are the final arbiters of every security and financial decision, every law have to do with taxes, or highways, or the territories. They decide whether the Israel Prize Committee’s choice of a prize recipient is valid, whether a minister has to resign or not, whether non-kosher meet can be brought into hospitals, or whether a group of women can decide they want to invite a female singer to perform for them. Indeed, they have ruled on all of these things.

In doing this they do not need there to be an existing law. They are just as happy to create that law, by ruling on it. Even issues which the Supreme Court itself had previously ruled were not justiciable, now, suddenly, magically, became the opposite.  (See the 1986 Ressler case, for example.)

Barak went further. He took what were called Basic Laws and turned them into Constitutional Laws. Barak admits that the legislature did not intend to have the original Basic Laws have constitutional import. (In fact it was passed as an addendum to the law on kibbutz debt.) But he saw himself in a historic role as the revolutionary of the law, and nothing was going to get in his way. In fact, in January 1997, in the case of a secular bearded man who asked for a special mask, the Court made it clear that it need not restrict itself to those rights actually enumerated in the Basic Law. It can state new laws under the Basic Laws without attribution to a specific Basic Law.

A Supreme Court is only supposed to interpret laws not overrule them. Barak needed a further weapon to allow him to overrule laws. He found it in the principle of “unreasonableness”. If the judges decided that something was unreasonable, it would be ruled illegal. A government specialist or committee or the whole Knesset be damned. Their judgement is subservient to the superior wisdom of the court. But what are the criteria to decide was reasonable? Barak stated that it would be the enlightened public (read the intellectual elite), whose values must be referred to. (Vicsilebaum v. the Minister of Security, 1993)

Public opinion (read the riff-raff) be dammed. This was made clear when the Court overruled the Film Censorhip Board which had cut a few minutes of a movie because it was pornographic (confirmed by a panel of independent experts) and supported a few experts who thought it was “art” was enough to warrant its protection on free speech grounds.

Hence, Barak and his fellow-judges launched an era of judicial activism the likes of which a Western democracy has never seen, whereby the expansion of standing (who is entitled to bring a case – i.e. who can be considered to be a legitimate party to a case), justiciability, reasonableness, basic laws, empowerment of the Attorney General and lawyers in each ministry appointed by him, all set up a legal system which became the most powerful institution in the country. No checks and balances here. Not even mentioned.

Let’s add to that that lawyers and judges in any Western country tend to be more liberal than the broader population. And that they controlled who got onto the Supreme Court almost always at the recommendation of the Chief Justice. And then the Chief Justice controls which judges sit on a particular case to ensure the right result.

A court that judges everything will find itself very busy. Dror Hoter-Yishai, once the chairman of the Israel Bar Association, accused the court of busying itself with inappropriate activities to such a degree that it no longer had time to fulfill its basic responsibilities to the law. Hoter-Yishai continued: “[N]ow the court is saying, “I’m overworked and exhausted and I barely have time to hear cases, and I no longer have the patience to hear cases.” I don’t know if you’re aware of what is happening there today: Twenty-five appeals a day are heard. It’s a joke. Who can rule on twenty-five cases? Who can even read twenty-five cases? And we’re talking about life and death issues! This is simply scandalous!”

But the court kept on expanding the things it would and did judge. In August 1996, the Supreme Court issued an injunction against the Transport Ministry’s traffic supervisor because the justices were unconvinced that the supervisor had weighed all the relevant factors properly. From then onwards, the court expanded their mandate to judge the competence of decision makers at any level.

The Supreme Court also decided that in 1993 that a minister who had been indicted (meaning it would go to trial) had to resign, therefore denying ministers the presumption of innocence.  In 1996, then-justice minister Ya’akov Ne’eman was indicted for perjury and forced to resign by that same ruling.  Ne’eman was completely cleared by a trial court nine months later-but he lost his ministerial position as a result.

Yariv Levine’s reforms are not reforms at all. They are coming to restore our justice system to what it always was, pre Shamgar and Barak, when it operated according to Western standards. In the light of this, the shrill cries of those saying that the reforms will undermine democracy sound hollow indeed.