End judicial dictatorship

Reactions to two recent initiatives by Justice Minister Daniel Friedmann underscore the warped conception of law prevalent in Israeli society. One was his decision to reenact the “Intifada Law,” even if this necessitates amending a Basic Law; the other was his proposal to change the process of selecting the attorney-general.

The Intifada Law largely barred Palestinians from suing for damages caused by Israeli troops since the intifada erupted in 2000. The High Court of Justice overturned it last December, on the grounds that excluding even damages from noncombat operations disproportionately violated Palestinians’ rights. Friedmann’s proposed reinstatement thus outraged rights groups.

“Amending a Basic Law to allow the reenactment of a law overturned by the High Court of Justice because it violates human rights is a dangerous and unprecedented step,” charged the Association for Civil Rights in Israel in a typical response.

Reasonable people can disagree over whether the Intifada Law ought to exist. What should be indisputable, however, is that the Knesset, which enacted the Basic Laws, also has the right to amend them if the court has misinterpreted its intentions.

No country on earth gives its Supreme Court unchecked power over its constitution; constitutional law is always a dialogue between the judiciary and the legislature. Some countries enable legislative overrides of specific court decisions, but usually, this dialogue occurs through the process of constitutional amendment: The court interprets the constitution, but the legislature can amend it if it dislikes the court’s interpretation.

IN ISRAEL, such dialogue is especially necessary, for two reasons. First, unlike other Western democracies, Israel’s “constitution” underwent no formal ratification process. Indeed, the two Basic Laws on human rights were enacted by a minority of the 120-member Knesset (the votes were 23-0 and 32-21). This makes their constitutional status highly dubious: A constitution enacted by minority vote has no precedent in democratic theory or practice. Thus amendments, far from disrupting a carefully crafted constitutional consensus, could actually help to forge one.

Second, Israel’s Supreme Court is exceptionally activist, and has interpreted the Basic Laws as granting many rights found nowhere in their text – including some that the Knesset explicitly rejected during its debate on the laws. When a court arbitrarily expands the constitution to include rights that the legislature never intended, it is assuredly the legislature’s right and duty to correct this via amendments.

Thus by declaring it improper to amend a Basic Law in order to overturn a court ruling, Friedmann’s critics are effectively seeking to replace the democratic norm of constitutional dialogue with a judicial dictatorship.

WITH REGARD to the attorney-general, Friedmann proposed the following: The search committee should be chaired by a former justice minister or attorney-general, rather than a retired Supreme Court justice; the retired judge on the panel should be allowed to come from any court, instead of the Supreme Court only, and should be appointed by the justice minister instead of the Supreme Court president; and the committee should propose two or three candidates to the cabinet instead of only one.

Friedmann’s critics, including current Attorney-General Menachem Mazuz, former Supreme Court justice Mishael Cheshin and Bar Association Chair Shlomo Cohen, charged that this proposal would politicize the selection process and thereby “undermine the rule of law.”

But this charge ignores the attorney-general’s dual role: head of the prosecution and the government’s legal adviser. The latter is a clearly political function, which is why the attorney-general is formally a cabinet appointment: The government is entitled to appoint a legal advisor who supports its policies and will facilitate their implementation.

This is especially vital given the Supreme Court’s outrageous ruling that the government’s “legal adviser” is in fact its boss, whose “advice” the government may not reject: That enables an uncooperative attorney-general to stymie the government’s legislative program.

CURRENTLY, however, the cabinet cannot actually choose its own legal adviser: Effectively, this is done by a search committee over whom the cabinet has little control. The five-member committee is chaired by a former Supreme Court justice, appointed by the court president, while two other members are chosen by the Bar Association and the country’s law school deans; thus government representatives are in the minority. Moreover, it traditionally recommends only one candidate, whom the cabinet must accept or reject; this further erodes the cabinet’s choices.

Friedmann’s proposal sought to shift the balance by making a cabinet appointee (the former justice minister or attorney general) the chairman, giving cabinet appointees three seats on the panel rather than two, and requiring the committee to give the cabinet a choice of candidates rather than a single “take it or leave it” nominee. This would have restored the cabinet’s ability to appoint a legal adviser who would help it advance its policies – a crucial component of any government’s ability to govern.

Yet the proposal also retained existing safeguards on the attorney-general’s prosecutorial independence, such as his appointment for a fixed term – even at the cost of undercutting the government’s freedom of choice: Under this system, should the government change during the attorney-general’s term, the new government could be saddled with a legal adviser committed to its predecessor’s policies rather than its own. Properly, each government should be allowed to replace its predecessor’s attorney-general.

UNFORTUNATELY, the cabinet diluted Friedmann’s proposal shamefully on Sunday: The committee’s chair will still be a retired judge (but not necessarily justice) appointed by the Supreme Court president, though the justice minister will now be able to veto the president’s choice; and while the committee will now have to forward more than one candidate to the cabinet, government representatives will still comprise a minority on it.

The original proposal, however, would have assured a crucial component of democratic governance, the elected government’s ability to enact its legislative program, without sacrificing prosecutorial independence. That hardly undermines “the rule of law” – unless this concept is understood to mean the replacement of democracy with rule by unelected legal officials.

That, unfortunately, is how Friedmann’s opponents do seem to understand it. But this is not an interpretation that ordinary Israelis should countenance.