1.
Despite the impressive protest movement, the absence of any serious debate in the media, disinformation about the judicial reform that large sectors of the public are exposed to, refusal to serve, and the usual prophecies of doom, the legislation process for judicial reform is continuing full steam ahead.
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It appears that the doomsday weapon the judicial system plans to deploy against the reform is to strike down the basic laws to be passed within the framework of the reform. That will lead to a grave constitutional crisis, the likes of which we have not seen in Israel's 75-year history. This was evident in the reckless speech given by former police commissioner Roni Alsheikh, who has pitted the government against the "law," which he identifies with the Supreme Court. The court however is not the law, it is subject to the law. Other senior officials have followed in his footsteps. Their words imply a call to rebellion against the elected regime.
If a court were to strike down a Basic Law that has been lawfully legislated without being granted the powers to do so, this would be a patently illegal act, tantamount to a coup d'état that would openly set the Supreme Court against the elected government. Until now this has been done covertly under the fog of legal obscurantism.
It was the Supreme Court that ruled that Basic Laws are quasi-constitutional and therefore override regular laws. Judicial authority is granted by the sovereign, the people, through the Knesset, which legislated Basic Law: The Judiciary. There is no democracy in which a court can debate chapters of the constitution and strike them down. This Israeli invention is not democracy, but rather – as the late Supreme Court President Moshe Landau called it – a "judicial dictatorship." The Supreme Court is a legal oligarchy that – de facto – runs the country in place of the elected government. The judicial reform is an attempt after 40 years to restore the balance between the branches of power and thus to strengthen democracy.
2.
A situation whereby the justices of the Supreme Court dare to put themselves above the legislature and the executive, and ipso facto above their own source of authority – namely, above the sovereign that granted them their authority through the Basic Law – will lead to a clash, the outcome of which no one can foresee. Responsibility for this will fall primarily on Aharon Barak, Esther Hayut, and their ilk. It was they who opened this Pandora's box by signaling to their supporters that they should set the country alight against the elected government.
3.
Beginning in the 1980s following the initial political upheaval that made it clear to the old elites that its days of exclusive control over the legislature and the executive were over, the Supreme Court – sitting as the High Court of Justice – began to appropriate for itself (without any legal foundation) more and more unrestrained constitutional powers to judge anything brought before it. Thus, it began to supervise the Knesset's parliamentary decisions in all fields and determined through interpretive techniques that the Knesset does not possess the authority to restrict by law the scope of judicial review. Prof. Berachyahu Lifshitz, a former dean of the Faculty of Law at the Hebrew University, explained in a comprehensive article published recently that no remnant of the boundaries required between the judicial and legislative authorities exists today. Lifshitz says that the separation of authorities has been brutally ended and the judicial authority has taken over the other branches of power.
Prof. Yoav Dotan of the faculty of law at the Hebrew University of Jerusalem, in his recently published book on judicial review of administrative decisions, writes that this "violates the fundamentals of a democratic regime;" the review body becomes the deciding body. The High Court began to intervene in diplomatic negotiations and in hiring and firing "something that is unparalleled anywhere else in the world."
"There is nothing similar to the High Court of Justice in any other legal system. The High Court is a singular legal institution by any measure." It has increased its involvement in public life through comprehensive changes to principal legal doctrines and has become a central channel to promote political ideas and interests - among its spheres of influence: oversight of defense issues, the attorney general, foreign affairs, committees of inquiry, international agreements and prisoner exchanges. With regard to "justiciability" too, the Israeli legal system has become the exception. From its perspective, everything has become justiciable. It has made itself the decisive authority on every issue, even in fields that belong to the legislative and executive authorities.
4.
The Knesset legislates law, and the courts have the authority to interpret them. The problem arises when a judge decides there is no such thing as a text that doesn't require interpretation, even when the text is clear and simple. The judge believes that it is his interpretation that decides and not the (straightforward) interpretation of the legislature. What I am talking about is Aharon Barak's "purposive interpretation" that is aimed at overriding the clear intent of the legislature and the explicit purpose of a law as presented in the law itself, in addresses to the Knesset plenum and in debates before Knesset committees. The courts operate according to the incredible maxim that the "legislature writes the text, and the purpose of the text is decided by its interpreter" as an independent judicial decision that makes law rather than look at its factual meaning. This is an intolerable situation because, as Prof. Lifshitz explains, by doing so, the interpreting judge takes upon himself the authority to add or subtract from what is stated in the law itself! I have already shown in a previous article how Barak's philosophy is similar to that of Chazal – Our Sages – who 2000 years ago saw their interpretation as determinative and that one does not study Halacha directly from Torah.
The main question that the reform's opponents should be asking themselves is who oversees the court and who restrains its power? After all, that is the central idea of having three branches of power and separating between them! In other words, who will guard the guards? How are we to trust the judges to restrain their power by themselves when we see how they intrude deeper and deeper into the other authorities? The saying that absolute power corrupts absolutely applies to judges as well.
5.
In a situation where the court acts in violation of the law, that it too is subject to. and decides to strike down Basic Laws that have been passed legally, the government should state unequivocally that the court's decision is null and void and has no legal standing. If the justices wish to spark a civil war, let the responsibility for that hang on their necks. They are not elected officials and they are certainly not the rulers of the country; they are emissaries authorized to modestly judge in accordance with the law.
This is perhaps the most important test of the past 100 years for the public affiliated with the current coalition. Does it understand what it means to rule and to lead? The judicial reform is not an issue for jurists alone; it is a plea by the masses of the House of Israel (including those who did not serve in elite IDF units) for their liberty to exercise their democratic rights through their elected officials in the legislature. In this battle to restore authority to the people, to give the citizens back their voice, this is the poor man's lamb, which for years has been stolen from him by juridical acrobatics. We can compromise, but we cannot withdraw. It is at the heart of our being.
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