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Part Two - The Structure of the Government and its Reduction

The Judicial System
From Sovereignty of the People to the "Rule of law"– and Back

Democracy: The Sovereignty of the People

Democracy is the rule of the people. The first characteristic of a democracy is that the people govern, expressing their choices, values and culture through the representatives they elect. Democracy is also characterized by the principle of "separation of powers," which means that the state must maintain a separation between the three branches operating within it: the legislative branch (the Israeli Knesset), the executive branch (the government[17]) and the judicial branch. Each branch is responsible for its domain and is not permitted to interfere in the areas of the others. In this way, the branches are supposed to restrain one another and prevent a single branch from dominating by subsuming all of the power. What is the role of the judicial branch in this careful balance? Montesquieu – the French philosopher who conceived the idea of "separation of powers" at the beginning of the 18th century – argued that the judicial branch should be humble and "the weakest by far" among the branches, because unlike the other two branches, it is not elected by the public. This "modesty" is expressed by restraining its criticism of the other two branches, particularly the legislative branch. Therefore, democratic thinkers developed doctrines of judicial restraint: the court cannot rule on issues that are outside the purview of the judiciary.

The Rise of Judicial Activism

In the early decades of the State of Israel, the High Court recognized this principle and refrained from interfering in issues of a political or military nature. But since the 1980s, under the leadership of Chief Justice Aharon Barak, the balance between the branches was violated forcefully under the banner of "judicial activism." In 1992, a "constitutional revolution" was completed with the enactment of two Basic Laws:

Basic Law: "Human Dignity and Liberty"
Basic Law: "Freedom of Occupation"

These laws essentially give the court broad operational leeway in subjective legal interpretation that allows it to grossly interfere with the other branches.

As a result, the balance of powers has been blatantly violated. The court and various legal advisors interfere in significant public questions pertaining to policy:

Disqualification of laws.
Use of the "reasonableness" and "proportionality" tests on many issues.
Expanding standing before the court.
Outrageous opinions not anchored in law.

All of these constitute a serious blow to the principle of separation of powers, to an extent unparalleled among democratic countries. This has caused actions of elected officials to be blocked, in turn violating the first principle of democracy - rule by the people.

Zehut's Policy: Back to Sovereignty of the People

Zehut believes that significant public issues and issues of a political or security nature are no place for the interference of the court. Zehut will restore the balance between the branches of government in order to allow the elected authorities to promote policies in accordance with their worldview.

The main laws that have to be passed in order to restore the ability to implement policies to the representatives of the citizens who elected them - without the Supreme Court, Attorney General, and the system of prosecutors exceeding their positions and paralyzing policy, are as follows[18]:

The High Court of Justice[19]

"Standing" (the right to petition the High Court) will go back to being applicable only to those who have been directly affected by the events in a particular case or will suffer some actual harm to their own legal interest if the court does not address the problem[20].
The High Court shall not be entitled to give a decision without giving its reasons for it at the same time.
The High Court and the Attorney General will have no authority beyond that defined in law.
A "ruling" established by the High Court shall be brought to the attention of the Knesset so that it may pass a law to override it.

Disqualification of Laws by the Supreme Court

The High Court (or any other judicial tribunal) will not be permitted to cancel a law passed by the Knesset.

If a judge finds that there is a gap or conflict between laws, this must be noted in the judicial ruling so that the Knesset can resolve the contradiction.
For the High Court to find that a law passed by the Knesset is inherently unacceptable due to its conflict with prior laws, such action will require absolute majority of two-thirds of all Supreme Court justices in office. In this situation, it will be necessary to reaffirm the law in the Knesset, or to change it legislatively. Until then, the law's validity would hold.
A law re-approved after the High Court made its determination will not be subject to further disqualification by the Supreme Court.

Not "Everything is Justiciable"

The State Prosecutor and the military prosecutor do not have the authority to interfere in the process of security decisions and their execution. Their role is to advise before and after security operations, but not during them.
Security activities will be subject to operational investigations, which will be judged according to "the Military Justice Law" and public criticism, but there will be no adjudication by the court (the High Court[21]).
The court will not be permitted to judge national-cultural issues and security beyond what is defined by law. This is the purview of the public and its elected representatives.
Clear rules shall be defined in law for the use of the judicial rationale of "reasonable cause"[22] in order to delineate it.
A prosecutor or judge may base advice or a ruling on "international law" only if he or she can show that it relies on an Israeli law or a government decision that binds Israel to an international treaty on the subject[23].
A judge who "interprets" laws in essential contradiction of their meaning, or who decrees penalties which are in essential conflict with the seriousness or triviality of the violations committed, can be summoned to a hearing before the Knesset Constitution Committee, and a special majority of members of the committee will be able afterwards to order his removal from office.
A judge who refuses to identify with the anthem and symbols of the State of Israel will be removed from office.

Appointment of Judges[24]

Those serving on the Judicial Appointments Committee[25], in addition to the Justice Minister, will be Knesset members only[26], elected by all members of the Knesset in a secret ballot.
Candidates for district judge or High Court justice will be subject to a public hearing in the Knesset before discussion of their candidacy.
The Chief Justice and Deputy Chief Justice of the High Court will be chosen from among the High Court justices in a secret ballot of the Knesset plenum, after a public hearing[27].

The Attorney General

The functions of the Attorney General and the Chief Prosecutor (State Attorney) will be split and will not be held by the same person[28].
The government shall be entitled to appoint an attorney to represent it in court.
The government shall be entitled to appoint and dismiss its legal adviser[29].
The Attorney General's term will end at the end of the tenure of the government.
Elected officials (ministers, mayors) are obligated to act according to the law, but will not be obligated to obey the advice of the Attorney General.
The Attorney General[30] may determine "guidelines" only with the approval of the Justice Minister and the Prime Minister[31].
The Attorney General and the Chief Prosecutor will have a "cooling off period" during which they cannot be appointed as justices on the High Court.

Appointment of Senior Public Servants

Elected officials shall be entitled to appoint to senior positions and positions of trust whomever they like. They will be able to use a "search committee" and legal counsel, but will not be obligated to abide by their recommendations.
No person shall be disqualified as a candidate for a position[32] unless he or she is personally suspected of a crime.
The government may appoint officials whose fixed term of office has come to an end (Chief of Staff, etc.) even during an election period[33].

Criticism of the Judiciary

The State Comptroller shall submit to the Knesset and the public an annual report containing statistical information regarding the work and rulings of Israel's judges and of the State Attorney's office.

The Status of Jewish Civil Law

The Zehut movement will act to deepen ties between Jewish civil law and existing state law by extending the Law of Judicial Foundations of Law, 5740-1980, which establishes a connection between Israeli law and the principles of liberty, justice, honesty and peace in Jewish tradition.
The essence of Zehut's policies in the area of Jewish civil law will be described below in the chapter on Jewish civil law in the section on Judaism, culture, and the state.

[17] Even if the government is a coalition of parties, it and its ministers and policies still express the people's choice, and should be allowed to govern their own way, and carry out their policies. Is is to this end they were chosen.

[18] The sections suggested here on reforming the judiciary are essentially a summary of the main points raised in "The Purse and the Sword," written by former Justice Minister, Law Professor Daniel Friedman, in which he describes at length and explains the processes undergone by the Israeli justice system since the founding of the state, which have led to the current situation.

[19] The High Court of Justice is a special court whose job is to hear petitions against the authorities and against public bodies when it is claimed that they are acting contrary to the law or to justice. Using a very broad interpretation of the concept of "justice", the High Court has allowed itself to greatly exceed the powers it was supposed to have. In fact, the justices arrogated to themselves the power to block any government decision or Knesset legislation which is inconsistent with their worldview. This, when court decisions are not subject to any sort of criticism, and without High Court justices being held responsible for the consequences of their decisions. In this way, the High Court has actually placed itself as the supreme authority over the government and the Knesset.

[20] It was that way until the 1980s, and the retreat from this principle is among the foundations of the "Legal Revolution" of Aaron Barak, and is also the reason for the impossible load on the High Court in its other role, as the highest "normal" court, causing a delay of justice for prolonged periods in cases coming before the High Court. It also causes a heavy burden on government ministries. For example, on 8.12.2016, the Defense Minister said that the Defense Ministry is now dealing simultaneously with 260 appeals to the High Court, which adversely affects its performance, and thereby achieves its purpose, which is to run "a war of legal attrition funded by international bodies, including the European countries" against Israel. [Israel Today].

[21] This section was written before the "Elor Azarya affair", in which security operations were passed for judicial review according to the Code of Military Justice without first undergoing the operational debriefing stage as is proper and required; i.e. this was a defect in the conduct of the IDF, that does not pertain to the High Court. The section here refers to cases in which the High Court interfered in security activities.

[22] Following is the criticism of Supreme Court Justice Grunis on the grounds of reasonableness and its use in "HCJ 3997/14, Movement for Quality Government in Israel v. Minister of Foreign Affairs, Section 28 of the judgment: "The question is therefore whether it would be preferable to adopt a clear and decisive rule that would provide legal certainty (for example, to make do with the rules of competence established by law, and at least to set clearer rules on the issue), even at the price of one appointment or another, where it is possible to think that it would have been better not to have made it. Uncertainty in law has a heavy price as well, and this is the price we are now paying.

[23] The Israeli public has become accustomed over the years to the concept of "international law", but this is a misleading term. So-called International Law "is a collection of inter-state agreements that individual states can, but do not have to, commit to some of them, depending on their interests. There is no "law" requiring any sovereign country to abide by an agreement that it did not choose to commit to following.

[24] A note regarding the jury system: English law, namely that in the UK, the US and other countries, has a jury system, designed to ensure that the rights of the accused are properly protected against arbitrary or unrealistic rulings by a "professional" judge by means of including a jury, which is comprised of ordinary people like the accused: not lawyers. Israeli law, which is based on English law, does not use the jury system, because what we have inherited here is not normal British law, but rather British colonial law, which did not give local "natives" such a right to protect their brothers from the tyranny of the British occupation judges. The proposed amendments to the method of appointment of judges here are designed to reconnect the judges of Israel with the public, but there is additional room to thoroughly examine the possibility of completing the necessary repair of our legal system through the introduction of a jury system.

[25] Today, there are nine members of the judicial appointments committee, three of which are High Court justices, and it requires a majority of seven out of nine to appoint a High Court justice. A simple calculation shows that you can not appoint a High Court justice in Israel without the High Court justices who serve wanting it. In other words, the High Court justices are selected by High Court justices themselves. The disastrous results of this abnormal situation are well known to the Israeli public. This is exactly the opposite of democracy. The public can replace the ruling party and the prime minister, but it can never replace the High Court "Party". That we seek to amend.

[26] The professional appearance of the committee’s current lineup exposes the fraud of "professional appointments." It would be better for election of justices to be carried out by Knesset Members in clear public deliberations, than for it to be cloaked under the "professional" guise, which blurs and hides from the public the competition of these interests themselves.

[27] Today, they are automatically appointed according to seniority in the High Court, so it is known 15 years in advance who will be appointed in the future.

[28] Today, the man who is supposed to legally advise the government in its work, to assist it in carrying out its role, is the person who runs the police investigations against ministers or their associates. In this situation, the advisor often becomes the decider, because the ministers are afraid to argue with him. The result is a paralysis of government action.

[29] Even if there is no inquiry or suspicion against any government ministers, it remains the case that the government of Israel is the only body in the state that cannot count on his lawyer acting for him. The Attorney General, once appointed, is not at all obliged to help the government carry out its policies, and can (this actually happened) present an opinion to the court opposite to that of the government, and the government has no recourse.

[30] The intent here is also to the person responsible for the State Attorney's Office and its subordinates, once this role is separated from that of the Attorney General.

[31] The "guidelines" of the Attorney General, and State Prosecutor who is subordinate to him, are in fact the de facto legislation that affects the daily conduct of the public service and the law enforcement system in Israel, and all of our lives. For example, "Guideline 2.5 of the State Attorney's Office", in which then State Attorney Minister Edna Arbel established that a woman who made a false complaint against a man was not to be sued even if it is proven that the complaint was a false complaint. The result was the destruction of the lives of many men following complaints that were exposed in court as false complaints, and "the rule of law", which is to say the guideline, prevented them from the basic ability to demand justice and punishment for slander. The Israeli police have treated the "guideline" as law.

[32] This refers to positions for which ministers are appointed by government ministers or by other elected officials.

[33] Including during the period of transitional government after elections. The continued normal functioning of the state must not be paralyzed for about half a year before and after elections.