Analysis from Israel

Three weeks ago, attention in Israel was riveted on two dramatic events that ultimately changed nothing—a rocket barrage from Gaza that didn’t lead to war and a cabinet resignation that didn’t bring down the government. These dramas overshadowed a truly significant event that occurred that same week: The government stopped being the only entity in Israel deprived of the basic right to defend its positions in court.

To anyone unfamiliar with Israel’s legal system, that probably sounds ridiculous. But it has been reality for the past quarter-century. And the fact that three Supreme Court justices finally rebelled against it indicates that Justice Minister Ayelet Shaked’s efforts to foment a judicial counterrevolution are bearing fruit.

The root of the evil was a 1993 Supreme Court ruling on a petition against Prime Minister Yitzhak Rabin’s refusal to fire a deputy minister, Raphael Pinchasi, whom the attorney general had tentatively decided to indict for corruption. Rabin wanted to wait for Attorney General Yosef Harish’s final decision. But Harish sided with the petitioner (a nongovernmental organization) and refused to represent Rabin’s position in court.

Pinchasi’s attorneys therefore argued that the government’s position hadn’t been properly represented. But the court, astoundingly, asserted that the attorney general’s position is the government’s position, even if the government disagrees. “The attorney general is the authorized interpreter of the law for the executive branch,” it said, and therefore, his opinion is binding on the government.

The result of this ruling was that the government effectively lost its right to defend its policies against legal challenges. If the attorney general happens to support a policy, then he’ll obviously defend it in court. But if he opposes it, he can choose not to defend it, and then the government’s position won’t be heard at all. The government can’t even hire an outside lawyer to defend it without the attorney general’s consent, and needless to say, such consent is rarely given.

This has two obviously pernicious consequences. The first is that in any disagreement between the elected government and the unelected attorney general, the latter’s view automatically prevails. Thus instead of being the government’s lawyer, the attorney general became its ruler.

The second is that the government has been deprived of a fundamental legal right—the right to defend itself in court. Individuals, corporations and NGOs are all entitled to defend themselves against legal challenges. Only the elected government is not.

But after 25 years of upholding this blatant injustice, the court has finally started to question it. The case itself was minor. Science Minister Ofir Akunis had refused to approve a scientist’s appointment to the board of a German-Israeli foundation because she once signed a letter supporting soldiers who refuse to serve in the West Bank. When the scientist and the council of university presidents challenged this decision in court, Attorney General Avichai Mendelblit refused to defend it.

Under the old norms, that should have ended the story: The government would automatically have lost. Instead, the three justices devoted much of the first hearing to criticizing the fact that Akunis’s views weren’t being heard. They then took the unprecedented step of allowing Akunis to represent himself at the next hearing.

Clearly, this isn’t the same as having a trained lawyer represent the government. Akunis, having no legal background, couldn’t advance any legal arguments in his defense. But he could at least explain his policy considerations, which is better than the court receiving no explanation whatsoever. And it’s an important step in the direction of recognizing the government’s right to full legal representation.

One justice also used the hearing to challenge another shibboleth long mandated by the court—that political considerations may not play any role in most government appointments. In other words, aside from a handful of senior office-holders, ministers have no right to appoint people who will support their own policies. This view that political considerations are illegitimate figured largely in Mendelblit’s refusal to defend Akunis’s decision.

But Justice Alex Stein disagreed. “Akunis does have the authority to weigh political considerations,” he said, because “the legislator chose to give the appointment power to the minister, and the legislator presumably knows that the minister is a political figure.”

The justices haven’t yet issued their final ruling, so they may still end up upholding the old order. Moreover, in any normal legal system, nothing about this case would even be an issue. In most democracies, it’s a given that ministers have the right to make political judgments when making appointments; it’s a given that the government is entitled to representation in court; and it’s a given that the attorney general isn’t the government’s master. Like any other lawyer, he’s expected to either represent his client or resign.

But for 25 years, none of the above has been true in Israel’s legal system. Thus the fact that newly appointed justices are starting to rebel against the status quo is a major change. And judicial rebellion is the only remedy currently available because there’s still no parliamentary majority for codifying the necessary reforms in legislation: The legal establishment has been too successful in convincing centrists that a legal system like that of all other democracies would somehow destroy judicial independence and democracy itself.

This sea change is a victory, above all, for Shaked, who has demonstrated unrelenting determination and political savvy in pushing through game-changing appointments. It’s no coincidence that two of the three justices in this case are people she successfully pushed through the Judicial Appointments Committee despite fierce opposition, especially from the three sitting justices who comprise a third of the committee’s members.

Credit also goes to her party leader, Naftali Bennett, who could have chosen the justice portfolio for himself instead of the less prestigious education portfolio, but gave it to Shaked because he had the sense and the generosity to recognize that she had a passion for judicial reform, which he lacked.

But the biggest winner is Israeli democracy. After 25 years in which unelected legal officials have had near-dictatorial powers over the elected government, the ship of state is finally starting to turn.

This article was originally syndicated by JNS.org (www.jns.org) on December 5, 2018. © 2018 JNS.org

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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