Last week we presented several examples of the High Court’s interference in legislation and executive-administrative decisions, and wrote about the need for legal reform. We wrote about the interference in the gas fields plan, the cancellation of the private prisons, the trampling on the illegal infiltrator laws, the horrific maltreatment of the residents of the Jewish residents of Judea and Samaria, and the blatant interference in the operation of the IDF, to the point of canceling the instructions and orders of the Chief of the General Staff.
In fact, the High Court appropriated an authority for itself, without any responsibility towards the voter.
Today we will try to explain, in a simple but exhaustive manner, how the justice reform, as proposed by the Minister of Justice Yariv Levin, answers these problems and what the expected next steps will be.
Written in Hebrew by Dan Nachman & Moshik Kovarsky, translated and brought to print by Nurit Greenger
Four Components of Legal Reform
To simplify matters, we suggest you remember the following initials, ‘LORA‘, when each letter represents one of the components of the justice reform phase one.
L – Legal Consulting (in Hebrew, ‘Yeutz mishpati’):
There is no democratic country in the world where so much power is given to legal consultants as in the State of Israel. This is about the Chief Legal Counsel under whose wings legal consultants are scattered in every government office and every local authority.
These consultants, who are professionally subordinate to the Chief Legal Counsel, who reports to no one, have become vested with the right of veto over any decision of the Executive Branch. They are tenured in their positions, without the possibility as much as to transfer them, even if they failed to work harmoniously with the Minister or the government.
A glaring example of this is the current Chief Legal Counsel, Gali Baharv-Miara. Having close ties to previous Justice Minister Gideon Sa’ar, she is now stuck in the government’s throat like a sharp bone.
Moreover, if the minister thinks that his or her decision is legal and is ready to challenge it in court, the only one who is allowed to represent the minister is the Legal Counsel himself. Clearly, this is ridiculous because the position that the Legal Counsel will present before the court is his own position – and that is contrary to his client’s position – the Minister.
The reform proposes to give the Legal Counsel all the respect and the opportunity to express his or her opinion to the Minister, but in the end, the minister can both get legal advice from another party and also can request representation before a court by someone who agrees with that position. This is logical and certainly requires a change.
O – Overcoming (in Hebrew, ‘Hitgabrut’):
In our previous op-ed we also wrote about invalidation of the laws’ authority power by the High Court of Justice. That is another authority the court gave itself without legal authorization.
Contrary to claims of opponents to legal reform, it allows the High Court of Justice to annul laws, but only with a full quorum; with the majority of 80% of the judges in the quorum. If the Knesset insists on its right to enact the law, it will be able to override the High Court’s decision with a majority of 61 Knesset members. This could also be overridden and be rejected when the High Court, in extreme cases, will unanimously decide against it.
R – Reasonableness – (In Hebrew, ‘Sviroot’)
Under Judge Aharon Barak’s leadership, the High Court radically expanded the use of the “reasonableness cause” *(*Probability factor.)
The court is obviously entitled, and should examine the Executive Authority’s decisions. It is also allowed to disqualify them when they are against the law, are passed without authority, or are not decided according to due process. In the framework of the reform, these clauses stay intact. The problem is that in the last thirty years the Court has assumed the authority to invalidate even legal decisions, passed with authority and due process.
It did so under the amorphous pretext that things are “unreasonable.” And who will determine what is reasonable and what is not? The judge of course. But the judge’s opinion about reasonableness is not better than the opinion of a taxi driver or a market shopkeeper.
Contrary to Chief Justice Ester Hayut’s recent misleading remarks, this is not about criminal or civil law. It is about administrative law: a citizen or an organization against the state. Sometimes, even in matters such as appointments, to which the citizen has no personal touch or cause to do damage.
The result of expanding on the ‘Reasonableness for administrative law’ is the reduction of governance, and the increase of uncertainty. The justice reform intends to deprive the judges of this power, a power they obtained without lawful authorization.
A – Appointment of judges (in Hebrew, ‘Minuy shoftim’):
Today, the Appointment of Judges Committee includes 9 members, of which 3 are Supreme Court judges and 2 are representatives of the Bar Association, whose interests are intertwined with the judges.
The appointment of a judge requires a simple majority. But for the purpose of appointing a Supreme Court Judge a special majority of 7 members is required. This means that without the consent of the Supreme Court judges, who form a block in the committee, no judge could be appointed to the Supreme Court in Israel.
This is how the court perpetuates its activist judicial DNA, which includes invalidating laws as well as constantly interfering with the decisions of the Executive Branch of the government of Israel.
The Minister’s Proposal
Minister Levin’s justice reform proposal is to expand the Appointment of Judges Committee to 11 members: 3 Supreme Court Judges, 3 government representatives, 3 Knesset representatives, including one Knesset member from the opposition, and 2 public representatives. The Bar Association will be able to provide opinions on judges but will not be a part of the committee and its decision.
In addition, Minister Levin, and rightly so, suggests a public hearing in the Knesset’s Constitution Committee, for the candidates for the Supreme Court only, in order to hear the scale of their values, their activities in the past, and to get an impression of their judicial temperament.
The Goal of Legal Reform
Every citizen must understand that the ultimate goal of justice reform is to give authority to those who bear responsibility. The Knesset will legislate, the government will execute, and the court will judge according to the law, as written and worded, and not according to its own ideology and its own speculations about the intention of the “reasonable legislator.”
The ones who will gain from all this justice legal reform are the citizens of Israel, who will receive improved governance in all areas: national and personal security, economy, policy decision making, and more.