Chairman of the Knesset Constitution, Law and Justice Committee Nissan Slomiansky says judicial restraint is key to court’s legitimacy, and that past rulings alienated large segments of the population • Israel’s constitution is the Bible, he notes.
MK Nissan Slomiansky (Habayit Hayehudi) became the chairman of the Knesset Constitution, Law and Justice Committee only a few weeks ago, but that has not stopped him from issuing an orderly agenda with specific goals.
[..]
Slomiansky does not hold his punches when it comes to the Supreme Court, and is particularly troubled by the judicial activism that defined Chief Justice Aharon Barak’s court between 1995 and 2006. Although Barak retired some eight years ago, Slomiansky says the repercussions are still felt.
“His spirit is still very much present in the Supreme Court,” he laments in an interview with Israel Hayom.
The Habayit Hayehudi platform says the party opposes the Supreme Court’s “excessive interference with legislative affairs and its encroachment on other domains.” What does that passage actually mean?
“Under Barak, the court essentially became the chief legislator. For example, there was this bill I had passed. It listed a specific objective and it had various provisions explaining its rationale. The bill was ultimately challenged in court. During the hearing, Barak said, ‘My interpretation of the bill is different than that of the legislator.’ His interpretation was binding across the board,” Slomiansky says.
“Barak also claimed the authority to strike down laws that had been passed by the Knesset, but that is not what the court is supposed to do. The court is not a legislative body. If it believes the law must be amended, the court could ask the politicians, unofficially, to reconsider its language. The Knesset is a democratic institution that is elected by the public, and the court must uphold its laws; it must not consider the Knesset inferior.”
The platform also claims that there is a disconnect between the court and the public and that its rulings are unrepresentative. Why?
“Let me give you several examples. When Barak was in charge of the court, his interpretation attached immense importance to two rather ordinary Knesset basic laws [Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation]. This elevated their role into that of a de facto constitution; any new bill on the Knesset docket has to be compatible with these two laws otherwise it is struck down. This is just to demonstrate the roles he claimed for himself.
“What’s worse, if you parse the language of his various rulings, as some people did, you would see that the Supreme Court is still very much to the left of center. I would like the Supreme Court to be connected to the public so that all segments of society feel that they have a voice in some form or another. Today there are large swaths of the population, including the Arabs and the ultra-Orthodox, who feel that the court does not represent them and that it operates in a vacuum. That is not a good situation. If more people feel represented by the Supreme Court, it will have been empowered. “
What does your party plan on doing to change things?
“First, we would like to enlarge the Judicial Nominations Committee to include three cabinet ministers instead of two. We would also like to have three MKs sit on the committee, up from two. The current makeup includes three judges, who usually vote as one bloc with the two representatives of the Israel Bar Association. That means they essentially have a majority. We must change things to make sure this five-member bloc does not wield veto power.”
Why are you against legislating more basic laws and drafting of a constitution?
“We are principally opposed to basic laws and a constitution because we believe Israel already has a constitution, the Bible. When Barak sat in one of the Constitution Law and Justice Committee hearings I debated him over the importance of a constitution. ‘Let’s assume we have a constitution, who is going to interpret it?’ I asked him, to which he replied, “The Supreme Court.” I told him only a constitutional court or an independent body comprising public figures should be allowed to scrutinize the constitution. In response Barak said, ‘Well, in that case, there is no point in having a constitution.’ What he actually said was that if a constitution is to exist, the court must interpret it and have the power of a sovereign.”
You platform says that lawmakers should avoid legislating coercive laws, both secular or religious. It also calls for elevating the role of the Halachah’s legal precepts. What do you mean by that?
“Knesset legislation should be compatible with Jewish law. There is no reason why this should not be the case, and the Knesset has never passed a law that defied Jewish law. It is crucial that we incorporate as many Jewish precepts as possible into our laws because these precepts have governed legal matters for 3,000 years with such beauty. One of the bills I sponsored says that whenever a Knesset law has a shortcoming, the courts must turn to Jewish law. Jewish law is very enlightened and it will only enrich our legal landscape.”
Are you in favor having the attorney general serve only as the legal counsel to the cabinet so that he does not get to decide on prosecutions?
“Separating those two roles requires serious thought and much deliberation. But the role of attorney general should be modified. I would like to hold more hearings on this matter because I am unhappy with the current state of affairs. The way things are right now, the attorney general is the master of the house and controls everything.”
What’s your reaction to the latest corruption among lawyers and law-enforcement officials, including among former officials at the State Attorney’s Office, the Israel Police?
“There is no doubt that it is not a pleasant sight to see our highest ranking officials, including the former president, former prime minister and former finance minister, get sent to prison or convicted on major felonies. Having said that, it is uplifting to see the state wage a campaign to purge these corrupt officials and prosecuting even those who had held prominent positions. We must educate our young on these values, starting in the early childhood years; we must send the message that such behavior is unacceptable.”
What is going to be your signature achievement in this Knesset?
“We must make sure that every piece of legislation recognizes that we are first and foremost a Jewish state. When Barak was chief justice, he turned things upside down and said the idea of a Jewish state was nothing more than an abstract and amorphous concept. That is why we must make sure that every new bill emphasizes that this is a Jewish state. Every bill should incorporate what Jewish morality has to say on its various provisions. Take for example the Law of Return. When the state was founded, our leaders wisely decided to pass the Law of Return so that we could live in a Jewish state. This is what also guided them when they passed laws regulating marriage and divorce and other family matters. I would also like to leave an imprint on other aspects, by advancing the ‘nationality bill’ [which seeks to define Israel as a Jewish state] and the ‘governance bill’ [which would bolster the executive branch].”
Slomiansky believes he has a fair shot at pushing through his agenda.
“A man must have the desire to move forward and must know what he wants,” he says. “It is hard to do so with a coalition comprising only 61 MKs, but I am optimistic.”
The bible is not a practical document!
It is only a matter of time until the correct setting will be working.