Among supporters of judicial activism, one radical faction denies the changes brought about by former\u00a0Supreme Court president Aharon Barak\u00a0and his followers. This includes their disavowal of the claim that a \u201cconstitutional revolution\u201d was carried out, as well as a stubborn attempt to rewrite history and insist that since time immemorial, every issue of national importance has always been decided in Israel by jurists.<\/p>\n\n\n\n
These attempts at gaslighting include ignoring everything that contradicts the thesis pretending that Israel\u2019s unbridled judicial activism in Israel is a natural development of Israeli law.<\/p>\n\n\n\n
Revolutionary judges have altered the Israeli system of government without asking the people, and created a shaky governance regime that harms both democracy and Israeli society.<\/p>\n\n\n\n
There used to be boundaries, until the court\u2019s proclamation that \u201ceverything is justiciable\u201d changed the judicial involvement in the making of important public decisions through a series of far-reaching judicial innovations that resulted in a revolution in public law.<\/p>\n\n\n\n
Now, we are witnessing yet another attempt to usurp the lawful authority vested in the government and its head. The justices will discuss whether or not\u00a0Maj.-Gen. David Zini\u2019s candidacy for head of the Shin Bet\u00a0(Israel Security Agency) can be promoted.<\/p>\n\n\n\n
This hearing in the High Court of Justice reminds us, once again, of the unprecedented judicial involvement in every important decision made in Israel.<\/p>\n\n\n\n
Despite the government announcing its interest in\u00a0Zini\u2019s appointment, Attorney-General Gali Baharav-Miara is seeking to prevent it. According to her, Zini is unsuitable to hold the position because the government is interested in his appointment. High Court justices must now determine the issue.<\/p>\n\n\n\n
The court will be required to make a series of unprecedented decisions about whether the government is allowed to exercise the powers granted to it by law.<\/p>\n\n\n\n
Can the Israeli government, in the midst of a prolonged war, appoint the head of the Shin Bet, a government agency with a major role in combat and the one holding central responsibility for terror prevention and intelligence in the Gaza Strip and in Judea and Samaria? The justices will have to decide whether to continue to suspend the government\u2019s ability to appoint a Shin Bet director during a period of critical security challenges, or to allow the government to appoint whomever it believes will successfully fill the role, according to the prime minister\u2019s recommendation.<\/p>\n\n\n\n
The justices will have to choose whether or not to adopt the position of the attorney-general, who has decided that\u00a0Prime Minister Benjamin Netanyahu\u00a0is in a situation of conflict of interest, due to an ongoing investigation of his office staff in relation to Qatar, and must therefore be stripped of the authority to make the appointment, contrary to the law.<\/p>\n\n\n\n
Even this does not satisfy Baharav-Miara, however, who further demands the establishment of an appointment mechanism guided by her representatives to review the procedure, signaling her refusal to allow Zini\u2019s appointment solely on the grounds that the government is interested in his appointment.<\/p>\n\n\n\n
Such a position contradicts the rules governing conflicts of interest and places no weight on the urgent security situation or to the solutions offered by the prime minister, who committed to the new Shin Bet head not dealing with the Qatar investigation.<\/p>\n\n\n\n
Baharav-Miara\u2019s opinion is obfuscated by legalese, but its meaning is clear: she seeks to control the appointment process and ensure that the candidate favored by the government and the prime minister of Israel is not appointed.
Now, the judges must determine whether to make her position binding \u2013 a position that is in direct contravention of the law that subordinates the Shin Bet to the prime minister, and in contrast to all known models of government accountability regarding security issues, as well as governments\u2019 ability to promote public policy.<\/p>\n\n\n\n
In the past, attorney-generals assisted governments in implementing their preferred policies, and the notion that the Shin Bet answered to the government and its head was unquestionable. Additionally, jurists would not have dared to assume responsibility for security matters or to determine questions that were not fundamentally related to the law.<\/p>\n\n\n\n
The rule of law requires the recognition of boundaries and binding rules that apply to all. We can still halt the descent into lawlessness and return the judiciary to its original vital role.<\/p>\n\n\n\n
All it takes is belief in the rule of law and in the existence of judicial boundaries that apply even to attorney-generals and justices.<\/p>\n\n\n\n