{"id":9136,"date":"2014-12-07T14:33:31","date_gmt":"2014-12-07T14:33:31","guid":{"rendered":"https:\/\/kohelet.org.il\/article\/israels-imperious-judiciary\/"},"modified":"2024-04-17T19:59:15","modified_gmt":"2024-04-17T19:59:15","slug":"israels-imperious-judiciary","status":"publish","type":"article","link":"https:\/\/www.kohelet.org.il\/en\/article\/israels-imperious-judiciary\/","title":{"rendered":"Israel&#8217;s Imperious Judiciary"},"content":{"rendered":"It is no secret that the state of Israel suffers from both external and internal threats to its life as a flourishing democracy. Less well known is that one of the most potent such threats arises from the unlikeliest of quarters: Israel\u2019s own hyperactive justice system.\n\nLet me begin with an anecdote. Even in Israel\u2019s famously contentious environment, it\u2019s startling to see a government minister interrupt a supreme-court hearing to shout that the state attorney representing his own ministry has been sabotaging him\u2014and that he wants to represent himself. But that is exactly what Ehud Olmert, then Israel\u2019s minister of industry, did in the summer of 2003.\n\nThe story, in brief, was this: the Israel Lands Authority (ILA), then under the control of Olmert\u2019s ministry, had reached a revenue-sharing deal with a consortium of kibbutzim to rezone and sell state-owned agricultural land under lease to the kibbutzim. A non-governmental organization (NGO) then petitioned the Supreme Court to invalidate the deal on the grounds that the deal \u201cover-compensated\u201d the (predominantly Ashkenazi and presumably privileged) kibbutzim and had thus failed to achieve \u201cdistributive justice.\u201d Since \u201cdistributive justice\u201d is the sort of policy issue in which most courts, in most countries, are loath to get involved, the ILA thought it had a strong case. So Olmert was stunned when Israel\u2019s attorney general, whose position entails defending state agencies in court, not only refused to defend the ministry\u2014his client\u2014but sent a state attorney to undermine its case.\n\nOlmert\u2019s outrage was his alone; nobody else in Israel was even slightly surprised. Already a decade had passed since Israel\u2019s high court opened its doors to any petitioner on any issue that caught its fancy, at the same time subordinating elected officials to legal bureaucrats ostensibly in place to advise and represent them. In doing so, the judiciary effectively emasculated the executive branch\u2014as it would ultimately emasculate the legislative branch\u2014while empowering a cadre of extremely powerful government lawyers unaccountable to the public.\n\nHere\u2019s how it happened.\n<h6>The Limits of Judicial Review<\/h6>\nOne of the foundations of republican government is the principle of checks and balances, with different branches of government serving to constrain the power of the others. In such a system, a key element is an independent judiciary whose job is to compel adherence to the law and prevent other actors from exceeding their legal authority.\n\nBut while the courts are necessary to preserve the balance of power, they must themselves be kept in check. What makes them especially dangerous is that, unlike elected officials, they are typically not answerable to voters. Thus, when judges invalidate some state policy, they are in effect, if indirectly, overruling a choice made by the citizens themselves. For this reason, modern democracies impose constraints both on the kinds of disputes the courts may address and on the specific ways they may resolve those disputes.\n\nFor the first three decades of Israel\u2019s history, its courts\u2014as is the practice in all democratic legal systems\u2014avoided judging the substance of administrative actions and intervened only when a government agency exceeded its legal authority. Indeed, Israel\u2019s legislative body, the Knesset, initially regarded the courts as such benign institutions that in 1953 it (misguidedly) passed a law allowing judges themselves to play the dominant role in determining judicial appointments. Predictably, however, the effect of that system, unique among democracies, was that slowly but inexorably the Supreme Court became ideologically homogeneous, thereby rendering its long record of judicial prudence vulnerable to dramatic reversal.\n\nThe major catalyst in this reversal was Aharon Barak. Born in Lithuania and, with his parents, a survivor of the Holocaust, educated at the Hebrew University and briefly at Harvard, and from 1975 to 1978 the attorney general of Israel, Barak then joined the Supreme Court, becoming its chief justice in 1995. From his perch on the court he launched not one but two revolutions. In the first, beginning in 1981, the court weakened the previous limitations on its interventions in state policy. In the second, less well-known but more insidious, it empowered a judicial-bureaucratic complex to nip government policies in the bud\u2014before they could even reach the courts.\n<h6>Judicial Overreach<\/h6>\nIn his initial revolution, Barak broadened the grounds on which courts could intervene in state policy and then eliminated two crucial limitations\u2014in legal jargon, \u201cstanding\u201d and \u201cjusticiability\u201d\u2014on the sorts of cases they could hear.\n\nGrounds: Until 1981, as noted above, the courts would not invalidate a government policy unless it could be regarded as an outright abuse of authority. That year, Barak ruled that even if a state agency\u2019s criteria for determining its policy were relevant and lawful but, in the court\u2019s opinion, the agency nevertheless failed to \u201cgive each of the relevant considerations appropriate weight,\u201d the court could invalidate the policy as \u201cunreasonable.\u201d In plain English, it could invalidate any policy it didn\u2019t like.\n\nThis opened the floodgates to judicial second-guessing of all sorts of state policies, no matter how beneficial or how picayune. In short order, the courts invalidated decisions regarding the placement of sidewalk tables at caf\u00e9s, nursery-school subsidies for self-employed mothers, the location of a soccer stadium, the scope of farm subsidies, the worthiness of prize winners, and more.\n\nStanding: Even after 1981, a petitioner wanting to bring a case before the court had to prove that he was directly harmed by the law or policy he was challenging. For instance, in 1981 the legal gadfly Yehuda Ressler brought a case disputing military exemptions for full-time yeshiva students; since he had no coherent claim to be a victim of these exceptions, his petition was rejected.\n\nBy 1986, however, when Ressler brought his petition a second time, the court, with Barak at its head, ruled that standing was no longer a requirement. (Ressler\u2019s petition was again ultimately rejected, but for other reasons.) It was a watershed moment. In the following years, the court entertained petitions by various political actors, including opposition Knesset members, offended by one or another government policy. Such petitions included demands that secret clauses in coalition agreements among political parties be made public; that the attorney general pursue prosecutions he had chosen to drop; that a candidate for the office of attorney general be rejected as unsuitable; and that a decision by the justice minister not to extradite an Israeli convicted in a foreign court be reversed. In none of these cases was the petitioner directly harmed by the law or policy being challenged.\n\nJusticiability: All of the petitions listed above not only lacked standing but also fell outside the constitutional role of the courts. That is, they lacked justiciability, which requires among other things that courts refrain from interfering in \u201cpolitical questions\u201d: the domain of the elected branches. But in the 1986 Ressler decision, Barak, after dispensing with the requirements for standing, also declared that \u201cevery instance of a decision by a government agency\u201d\u2014even \u201cgoing to war or making peace\u201d\u2019\u2014was justiciable.\n\nSubsequently, Barak would go on to cite his theoretical abolition of both standing and justiciability as established jurisprudence. Freed of all constraints, the court now addressed such security issues as challenges to military tactics, the placement of the separation barrier near the Green Line, and negotiated deals involving prisoner releases. Regarding this judicial intervention in security matters, Mishael Cheshin, Barak\u2019s colleague on the Supreme Court, once observed that \u201cJustice Barak is willing to see 30 or 50 people blown up for the sake of human rights.\u201d\n\nThe court also weighed in on the worthiness of government officials. In 1993, two senior officials of the Shas party, Interior Minister Aryeh Deri and his deputy Rafael Pinhasi, were indicted on corruption charges. Prime Minister Yitzhak Rabin did not wish to fire the two ministers. Nor did the law require him to do so, since they had been indicted but not yet convicted. But when several NGOs brought suit against the prime minister for exercising this right, the court enjoined him to fire them both, precipitating a major political crisis. In 2013, emboldened by its success in deposing appointed ministers, the court would go a step farther by deposing three elected mayors, each of whom had been similarly indicted but not convicted. (The voters, unimpressed, re-elected all three shortly thereafter.)\n\nThe Deri and Pinhasi cases also triggered Barak\u2019s second revolution, to which we now turn.\n<h6>Empowering the Legal Bureaucracy<\/h6>\nThe Supreme Court\u2019s stunning extension of its own authority has been duly noted by observers in Israel and abroad. Among American experts, both Robert Bork (\u201cBarak\u2019s Rule,\u201d Azure, Winter 2007) and Richard Posner (\u201cEnlightened Despot,\u201d the New Republic, April 23, 2007) would write scathing reviews of Aharon Barak\u2019s 2006 book, The Judge in a Democracy. Less publicized outside of Israel, but significantly more damaging in its day-to-day consequences, was the court\u2019s empowerment of proxies to expand its own authority at the expense of the legislative and executive branches.\n\nIn the 1993 Pinhasi case, Dorit Beinisch, then the state attorney and later to become chief justice of the Supreme Court, dryly read out the letter written by Yitzhak Rabin, the prime minister of Israel and her client, expressing his position that he had no legal duty to fire the accused deputy minister. She then proceeded to argue against her client.\n\nIn his decision, Barak addressed an obvious objection\u2014namely, that the government had been denied due process to defend its position in court. In what is perhaps the single most consequential passage in the history of Israeli jurisprudence, Barak argued that the attorney general, as the \u201cauthorized interpreter of the law with regard to the executive branch,\u201d was under no obligation to defend the policies of the prime minister. In Barak\u2019s words,\nThere are two basic principles in this matter. First, that the attorney general\u2019s opinion on a legal matter reflects, as far as the government is concerned, the existing legal situation. Second, that representation of the state and government agencies is entrusted to the attorney general. . . . Thus, if\u2014in the attorney general\u2019s opinion\u2014the government agency is not acting in accordance with law, it is the attorney general\u2019s prerogative to inform the court that he will not defend the agency\u2019s act.\n\nIn this ruling, the court established both that elected officials would be bound by the views of legal advisers ostensibly subordinate to them and that the government and its ministries were not free to choose their representation in court but would have to make do with bureaucrats assigned to them by the attorney general\u2019s office. Each of these two principles, unparalleled in democratic nations, has had precisely the chilling effect on governance that one might expect, especially when combined with the court\u2019s effective control over judicial appointments and the power it granted itself to block appointments of which it does not approve.\n\nAs for the attorney general, although appointed by the government, he or she must be selected from a very small set of candidates nominated by a committee; that committee is headed by a retired supreme-court justice who is appointed, in turn, by the sitting chief justice. This system, devised by the justices themselves, makes the attorney general a judicial plant in the executive branch. Since the opinions of attorneys general possess binding force, they have essentially been handed veto power over government policy. Moreover, this same binding authority has since been extended to the entire staff of the attorney general\u2019s office and thence to legal advisers of individual ministries: that is, bureaucrats neither chosen by their supposed bosses nor elected by the people. These advisers, in the understated words of former Justice Minister Haim Ramon, \u201csilence the government and greatly impair the ability of ministers to implement their policies. . . . This is not legal advice, this is coercion.\u201d\n\nTake the case of a multibillion-dollar train line between Jerusalem and Tel Aviv, a project initiated by the ministry of transportation. A deputy attorney general, expressing his opposition to the fact that 350 meters of track crossed the Green Line, advised the ministry that it was in violation of the Geneva Convention and that he would allow it only if the plans were broadened to include a new fenced highway serving Palestinian transit from Hebron to Gaza. The government, resigned to the courts\u2019 accepting this \u201cadvice\u201d as binding, obediently revised its plans, incurring a delay of years at immense cost.\nThe attorney general\u2019s office, following the court\u2019s example, also does not refrain from weighing in on military matters. Throughout Operation Protective Edge in Gaza earlier this year, Israel continued supplying electricity to Gaza even as the electricity was being used by Hamas for the production of rockets. As Prime Minister Netanyahu explained the anomaly, \u201cour legal advisers won\u2019t let us stop the supply of electricity to Gaza.\u201d\n\nOnce the high court conflated its vague and subjective notion of \u201cunreasonableness\u201d\u2014i.e., something not to the court\u2019s liking\u2014with illegality, the legal bureaucracy followed suit. Today, it is sufficient for a legal adviser to declare some proposal \u201cunreasonable\u201d (or even \u201cunsuitable,\u201d or \u201cinappropriate\u201d) to kill it. Similarly, government officials themselves can be disqualified from office on bogus grounds by attorneys general and their subordinates\u2014as routinely happens. In early 2011, for example, preliminary investigations by the attorney general\u2019s office were enough to derail the appointments of the heads of the army, the police, and the prison system.\n\nAnd that is not all. As a result of the second principle established by Barak in the 1993 Pinhasi decision, even the right to choose one\u2019s representation before the courts is denied to the state and its agencies. That is how Ehud Olmert came to be reduced to shouting in court that he\u2019d been sabotaged by his own lawyer on a petition that should not have been heard in the first place. (The petitioner, an NGO, had no standing, that is, no coherent claim to being a victim of the policy in question; and the issue, being political, was not justiciable.) The court showed little interest in Olmert\u2019s objections. Ultimately, it ruled against him and the Lands Authority alike, exacerbating an acute land shortage from which Israel suffers to this day.\n\nIndeed, now that that the prerogative of the government\u2019s lawyers to argue against their clients\u2019 positions in court has been established, they are no longer even compelled to exercise that prerogative. The threat itself will do. A lawyer in the attorney general\u2019s office can warn that the office won\u2019t defend a bill should it be challenged, and the legislature, lacking recourse to other lawyers, will preemptively back down.\n\nFor all the harm done by the court\u2019s unilateral extension of its own authority\u2014Barak\u2019s first revolution\u2014at least its judicial interventions are carried out in the light of day and with a semblance of due process. The machinations of the legal bureaucracy embedded in ministries and other agencies of government\u2014Barak\u2019s second revolution\u2014take place behind closed doors, preventing cases from even reaching court; the chilling effect is consummate.\n<h6>Why Reform is Difficult<\/h6>\nIsrael\u2019s justice system is in desperate need of reforms that can end this tyranny of the legal bureaucracy. The particulars of the reform are not difficult to identify: allowing the government and its ministries to hire and fire legal advisers at their discretion; allowing government agencies to choose their representation in court; turning judicial appointments over to elected officials; restoring the requirement of standing; and dividing the powers of the attorney general among several individuals. Elected officials, across the political spectrum, have a clear interest in advancing these reforms. Why, then, have they not pursued them?\n\nThere are three different answers to this question, each sufficient in itself. The first is that politicians are afraid of the long arm of the judicial bureaucracy, which can punish them for challenging its authority. The second is that the Supreme Court and its bureaucratic allies know how to use the power they have arrogated to themselves in order to stymie attempts at reform. The third is that Israel\u2019s political culture needs to be changed before its laws can be changed.\n\nThe judicial-bureaucratic complex has already made a habit of intimidating high-ranking politicians. It is perhaps no coincidence that investigations have been launched against four recent justice ministers and one whose candidacy for the position was killed in advance, as well as against every prime minister who has served in the past 20 years. A few of these individuals might actually have been guilty of the offenses they were accused of\u2014two were convicted\u2014but in the majority of cases an investigation or, for some, the threat of an investigation has been sufficient to keep the politicians on a tight leash. Simply by allowing a bogus case to remain open, the court (or the attorney general) can exert its influence on policymaking.\n\nEven if some courageous politician musters the courage to advance a reform proposal, it will have no chance of passage. At the preliminary stage it will need to be vetted by the attorney general and edited by ministry lawyers; in the event it somehow makes it far enough to be challenged in court (as it surely will be), it will be \u201crepresented\u201d by legal counsel under no obligation to defend it; it will then need to be upheld by a court not especially inclined to compromise its own power. Why should legislators bother in the first place?\n\nIn the end, the only real path toward reform lies through a change in Israel\u2019s legal culture. The judicial-bureaucratic complex has invested decades in persuading the public that elected politicians are dangerous because they wish to advance the interests of their constituencies, while prosecutors, legal advisers, and judges are neutral, free of personal and institutional interests, and committed only to the cause of justice. (As Barak once put it, apparently without irony: The judge \u201cdoes not seek power, nor does he crave to rule. He does not seek to impose his personal views on society. He wishes only to do justice.\u201d)\n\nStudents in Israeli law schools learn that it is their sacred duty to rescue public policy from the clutches of democratically-elected officials who wish to \u201cpoliticize\u201d it. Consider, for example, a landmark 1994 decision (in the Bank Hamizrahi case) justifying judicial review of laws. First, Barak conjured the existence of what he called the \u201cfundamental values of society\u201d:\n[W]hen judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time. . . . Judicial review of constitutionality enables a society to be true to itself and to honor its basic conceptions.\n\nElsewhere, Barak helpfully explained that the society to whose fundamental values he referred was not the entire society but rather only the \u201cenlightened public.\u201d And what were those \u201cfundamental values\u201d? Whatever the court said they were. In other words: the Law is us.\n\nGenerations of Israeli law students have been taught Barak\u2019s doctrine as gospel. Restoring the pre-Barak juridical culture of realism and restraint will thus be a long process. Students will need to be reintroduced to now-heretical ideas regarding representative government and limited bureaucracy, presumably by studying non-Israeli scholarship on the topic. These ideas will need to filter down to the general public as well, so that the courage to advance reforms becomes\u2014for a politician, a party, or a movement\u2014an advantage rather than a liability.\n\nWho is up to the challenge? That is the question of the hour.","protected":false},"excerpt":{"rendered":"Restoring the pre-Barak juridical culture of realism and restraint will be a long process. Students will need to be reintroduced to ideas regarding representative government and limited bureaucracy.","protected":false},"featured_media":9205,"template":"","article-category":[525],"custom-tags":[532,540],"ppma_author":[64],"class_list":["post-9136","article","type-article","status-publish","has-post-thumbnail","hentry","article-category-publications","custom-tags-court","custom-tags-prime-minister-of-israel-benjamin-netanyahu"],"acf":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v24.7 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Israel&#039;s Imperious Judiciary - kohelet<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.kohelet.org.il\/en\/article\/israels-imperious-judiciary\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Israel&#039;s Imperious Judiciary - kohelet\" \/>\n<meta property=\"og:description\" content=\"Restoring the pre-Barak juridical culture of realism and restraint will be a long process. 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