The Necessity of Bringing Israel’s Supreme Court into the 21st Century - by Vic Rosenthal

...The Supreme Court is the most important and powerful institution in the state that is still firmly in the hands of the old left-wing elite. Even if you think it is a benevolent despot, it is still a despot. Shaked’s bill to end its incestuous means of reproduction is a good start to bringing it in line with the rest of the nation.

Vic Rosenthal..
Abu Yehuda..
04 November '16..

The latest battle in Israel’s ongoing struggle to define itself is being fought over the way Supreme Court justices are selected. The 15 justices are appointed by a judicial selection committee of 9 members:

- The Minister of Justice, who chairs the committee,
- One additional cabinet minister, chosen by the cabinet (i.e., the government),
- Two Knesset members, one from the coalition and one from the opposition,
- Two members of the Bar Association, selected by the association, and
- Three current justices of the Supreme Court, including the President of the Court (Chief Justice).

Presently, a super-majority of 7 committee members is required to approve a candidate. This gives the existing court justices a veto power, and – since the Court and the Bar Association lean leftward – gives left-of-center candidates a significant advantage. It also means that the Court is self-selecting and unaccountable.

The Israeli Supreme Court has far more power than the US Supreme Court. Rules about justiciability (what matters are in the purview of the Court) and standing (who can petition the court) are far looser than in other democracies; any citizen can petition the Court about any action of the government. It can throw out a law passed by the Knesset even if there’s no litigation about it. Or it can let it be known before a bill is passed that it will not approve it in its present form, and thereby force changes.

The Court greatly expanded its role and its power as a result of the activities of Aharon Barak, who was a justice from 1978-95, and its President from 1995-2006. The American jurist Richard Posner explains just how much power Barak placed in the hands of the Court (his hands!) in a review of one of Barak’s books. It is eye-opening.

Many Israelis feel that that it is unacceptable that in a democratic country so much power is held by an institution that is almost entirely not accountable to the people or its elected representatives. On the other hand, there is great respect for the Court and for the importance of having an independent judiciary and a rule of law.

The present Minister of Justice, Ayelet Shaked, has submitted a bill to the Knesset to change the rules so that only a simple majority of 5 members will be required. This would eliminate the veto power held by the current justices.

(Continue to Full Post)

Updates throughout the day at http://calevbenyefuneh.blogspot.com. If you enjoy "Love of the Land", please be a subscriber. Just put your email address in the "Subscribe" box on the upper right-hand corner of the page.Twitter updates at LoveoftheLand as well as our Love of the Land page at Facebook which has additional pieces of interest besides that which is posted on the blog. Also check-out This Ongoing War by Frimet and Arnold Roth. An excellent blog, very important work. 

.

Making use of a straw man to attack Israeli Supreme Court reform

...Judicial independence is indisputably essential; a country where courts merely obey government dictates is a dictatorship, not a democracy. Hence by claiming that Netanyahu’s proposals would undermine judicial independence, his critics seek to tar them as something no democracy could countenance. But what these critics are really trying to protect isn’t the court’s independence, but its excessive power – a power without parallel in any other democracy, in which justices first choose their own successors to create an ideologically-uniform court, then seek to impose this ideology on the country by asserting a right to overturn government decisions and/or legislation on virtually every important policy issue

Evelyn Gordon..
Analysis from Israel..
08 May '15..

Prime Minister Benjamin Netanyahu has said his new government aspires to enact legislation to restrain the Supreme Court. But this weekend, his spokesman said Netanyahu “consistently championed the independence of Israel’s judiciary” for three terms and will “do so vigorously during his fourth term as well.”

So one of those two statements is clearly a lie – at least according to former Supreme Court President Aharon Barak, current Supreme Court President Miriam Naor, Attorney General Yehuda Weinstein and President Reuven Rivlin, all of whom last week assailed the Likud party’s proposals as undermining the court’s independence and even democracy itself.

Yet in reality, both of Netanyahu’s statements are true. The only lie is his critics’ claim that the bills would undermine either judicial independence or democracy.

The first bill would alter the way Supreme Court justices are chosen. Currently, Israel’s system is unique in the Western world. Justices are chosen by a nine-member committee on which the legal establishment, rather than elected officials, constitutes the majority. It consists of two ministers, two MKs, two Bar Association representatives and three sitting justices.

Moreover, sitting justices have veto power over the choice of their successors. Supreme Court appointments need at least seven votes, so anyone the three sitting justices oppose has no chance.

No other Western democracy gives sitting justices any role in choosing their own successors, much less veto power. Indeed, most entrust Supreme Court appointments solely to the people’s elected representatives. In America, the president appoints justices and the Senate confirms them; in Germany, parliament’s upper and lower houses each select half the justices; in France, the president appoints nine of 15 justices while the head of each parliamentary house appoints three; in Switzerland, parliament selects the justices; in Sweden, the cabinet does; in Australia, Canada, Belgium and Norway, justices are appointed by the monarch but either nominated or approved by the cabinet.

Yet nobody accuses those countries of being undemocratic, or their courts of lacking independence. And for good reason: Once chosen, justices serve for life or until mandatory retirement; they can neither be dismissed nor reappointed. Hence they’re free to rule as they see fit without fear of consequences.

In Israel, justices similarly serve until age 70 and can’t be dismissed, making them completely independent. And the proposed reform wouldn’t change this.

What it would do is reduce the justices’ power to choose their own successors, by boosting the appointment committee to 11 members, with six politicians instead of four. The legal establishment would retain five seats, so it would still have more influence over Supreme Court appointments than other democracies allow. But politicians would constitute a narrow majority of the panel rather than a minority, and the justices would lose their veto, since seven votes would be obtainable without them.

This would not only bring Israel’s system more into line with Western norms, but would also reduce the court’s stultifying lack of ideological diversity. Currently, because justices essentially select their own successors, candidates who don’t share the majority’s views are rarely appointed. This has generated growing distrust of the court among Israelis who don’t share its dominant worldview: Only 56 percent of Israeli Jews voiced confidence in the court in 2013, down from 80% in 2000. And since few things are more corrosive to democracy than lack of trust in the judicial system, increasing the court’s ideological diversity would actually bolster democracy.

Actually, the way Israel decides to appoint judges is none of the EU’s business

...The EU’s unsolicited opinion about what is strictly a domestic Israeli matter stems from both arrogance and ignorance. From arrogance, because the way Israel decides to appoint its judges is none of the EU’s business. From ignorance, because in most European countries and other western democracies, the executive and legislative branches have more influence over the appointment of judges than in Israel.

Dr. Emmanuel Navon..
i24 News..
29 April '15..

As Israel’s political parties were negotiating the guidelines of the next government coalition, the Likud party raised the issue of judicial reform with the intention of changing the way Supreme Court judges are appointed. While this is a domestic issue and a legitimate matter of debate in an open society, the European Union expressed concern (according to Israel's Channel 2 news) about Likud’s proposal.

The EU’s unsolicited opinion about what is strictly a domestic Israeli matter stems from both arrogance and ignorance. From arrogance, because the way Israel decides to appoint its judges is none of the EU’s business. From ignorance, because in most European countries and other western democracies, the executive and legislative branches have more influence over the appointment of judges than in Israel.

Since Israel lacks a written constitution, the separation of powers between the three branches of government was never clearly delineated. Israel’s Basic Laws outline the powers of the three branches, but since the early 1990s the judicial branch has unilaterally and dramatically expanded its powers by allowing itself to repeal legislation, by turning the legal opinions of the attorney general into instructions which the government must obey, and by granting a de facto veto power to the judiciary over the appointment of Supreme Court judges. As a result, Israel’s judiciary is both overpowered and self-appointed.

In Israel, Supreme Court judges are appointed by a committee composed of three sitting Supreme Court judges, of two representatives of the Israeli Bar Association, of two members of Knesset (one from the opposition and one from the coalition), and of two government ministers (including the Justice Minister). In 2008, the law was amended so as to require the support of all committee members taking part in the vote, minus two. Indeed, a candidate needs the support of seven committee members to be elected. Since the Supreme Court has three representatives on the committee, it has a de facto veto power over the appointment of its new members (especially since the three judges can almost always count on the support of the two representatives from the Bar). On the surface, therefore, the committee is balanced. In effect, Supreme Court judges themselves decide who will join their ranks.

By granting such power to the judiciary over the appointment of Supreme Court judges, Israel is unique among Western democracies. In other Western democracies, the supreme bodies entitled to repeal legislation are appointed by the executive and legislative branches.

The Consequences of Judicial Activism

Evelyn Gordon
Commentary/Contentions
28 May '10

Israel’s Supreme Court lambasted the government this week for disobeying a temporary injunction to stop work on a West Bank road. This isn’t the first time the court has complained of governmental noncompliance with its orders; as various commentators have noted (here and here, for instance), noncompliance is rapidly becoming routine. Yet both court and commentators tend to overlook the court’s own responsibility for this problem.

In March, Haaretz published a list (Hebrew only) of nine court orders the government had yet to obey. They included orders to build 245 new classrooms in East Jerusalem, to reinforce every school within rocket range of Gaza against rockets, to build a high school in an Arab village, to relocate the security fence near the West Bank village of Bili’in, and to do the same near the village of Azzoun.

These rulings have one thing in common: each would cost hundreds of millions of shekels to implement; collectively, they would cost billions. Thus to obey them, the government would have to slash billions of shekels from other parts of the budget. And while I favor budget-cutting, most quick and easy big cuts would have disastrous consequences: slashing welfare, say, or canceling all army training exercises. Productive cuts, such as eliminating unnecessary layers of civil-service bureaucracy, are neither quick nor easy, as they would entail major fights with powerful government unions. Thus in the real world, there is no practical way to promptly obey all the court’s rulings.

But aside from the practical problem, these rulings embody a more fundamental problem: the judicial usurpation of government prerogatives. Clearly, such rulings reduce the government’s ability to set its own budgetary priorities, but the problem goes way beyond budgets.

(Read full post)

If you enjoy "Love of the Land", please be a subscriber. Just put your email address in the "Subscribe" box on the upper right-hand corner of the page.
.