By Prof. J.P. Golbert
There is a great deal of pious nonsense circulating denouncing as “undemocratic” proposed legislation which would require Knesset consent to the appointment of judges. The denunciations have been so vociferous that the Prime Minister has caved in to them. The self-styled defenders of democracy contend it is undemocratic because it impinges on the “independence of the courts.” Of course, no one bothers to explain how it would have that effect or why it is impossible to have too much of a good thing. Shrill generalizations fill the air with no substance
In the United States, as an example, judges have always been appointed by the President subject to the consent of the Senate. State judges are similarly appointed by governors, subject to consent of the legislative branch. Can anyone seriously believe that the American judiciary does not have independence?
In fact, requiring Knesset approval of appointments would have exactly the opposite effect. The truth is that the courts are totally dependent on the President of the Supreme Court who is the only one in the Israeli judiciary who enjoys independence.
The Israel Bar Association appoints members of the commission and the Minister of Justice is a member, it is true. But cases before the Supreme Court of Israel are not heard by the whole court, as is the case in the United States, where every justice hears every case. I believe it is unprecedented in democracies and unparalleled that the President of the Israel Supreme Court has the power to select which justices will sit on every case before the Supreme Court.
That means the President decides every case, because all the justices know how every one of them views every issue. The President of the court also wields power over those who supposed curb the President’s power. The members of the commission appointed by the Israel Bar are practicing lawyers and the Minister of Justice is likely to be a practicing lawyer again after leaving office. If they oppose the will of the President of the Supreme Court, they can never expect to win another case before the Supreme Court.
Moreover, since promotion of judges is also controlled by the President of the Supreme Court, lower court judges cannot oppose the President either. So the appointees of the Bar and the Attorney General who will likely go back to private practice can expect never to win another case in court. The “independence of the judiciary” in Israel is, in reality, only the untrammeled power of the President of the Supreme Court, who is answerable to no one.
That, in and of itself, is antidemocratic. The basic premise of democracy is that people are corruptible and need to be governed. Those who govern have a great deal of power and power corrupts. So they too need to be governed. That includes the President of the Supreme Court.
In fact, given the degree of dominance of the President of the Supreme Court, the proposed measure would actually reduce only the power of the President of the Supreme Court over the other judges in the system and would establish the independence of the judiciary for the first time in Israel’s history.
Knesset approval of appointments would also increase the independence of the elected branches of government; namely, the Knesset, the Prime Minister and the Cabinet, from the dominance of the Supreme Court, which has arrogated to itself the power to turn the Attorney General into a servant of the Court; to veto appointments to public office, via the Prosecutor’s office, whose career also depends on the President of the Supreme Court, by bringing criminal charges which are then dropped once the appointment is withdrawn; to rewrite or strike down legislation, even to control military actions in the course of battle.
None of the shrill defenders of “democracy” complain about these anti-democratic matters. They warn that Knesset approval of judicial appointments would “politicize” the court, as if the President of the Supreme Court is not political.
The last contention of the opponents of the proposed measures, and the most asinine of them all, is that these measures would bring upon Israel the censure and opprobrium of the Europeans, who would view it as fascistic.
Would they really? First, the Europeans have decided that freedom and democracy are not worth civil war with their militant Islamic populations. They have already decided to surrender to Islamic tyranny. Are we really going to sit and take instruction from them about democracy?
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The writer, formerly a practicing lawyer in New York and California and a law professor in Los Angeles, has practiced law in Jerusalem since 1986. Permanent mailing address: Pitum HaKetoret 21/1, Efrat 90435 Tel: (972) 50-7428100 Fax: (972) 2 993-4108 Tel. From USA: (323) 285-
Can anyone explain to me the drawback of a military coup in Israel by pro-Israeli patriots to overthrow the Supreme Court?
I agree with Laura, nearly all the time. I also agree with Golbert, that this argument is asinine. Golbert is suggesting that Israel adopt a system of appointing judges that is similar to that used in the United States. It’s a real laugh, to have Europeans calling such a system “fascistic” — Europe, the home of fascism. I don’t think the Jews of Israel need worry about what the Europeans think on this issue.
The ones screeching about the proposed changes as being “undemocratic” and threatening the independence of the court don’t actually want an independent court but wish to maintain the left’s tyrannical hold on the Israeli Supreme Court.
Insecure Jewish liberals are always worried about how Jew-haters will perceive them.
Right on target.
Israel has a judicial dictatorship of one high public official, actually. The most powerful person in Israel is Israel’s Chief Justice – not elected by the voters and not accountable to them and he can appoint his fellow Justices, the Attorney General, decide who gets to sit on Israel’s lower courts and approve or thwart policies and Cabinet appointments of the government of the day. There are no checks and balances on what he can do. As Lord Acton famously said, “absolute power corrupts and corrupts absolutely.” Court reform is urgently needed in Israel – the issue is not “judicial independence.” The real issue is whether one person should have absolute and unchecked power in a democracy. That is as true of the Chief Justice as it is for other public officials. In the final analysis, the head of Israel’s courts must never himself be above the law.
I would only add that the author did not go far enough in elaborating the issue(s) at hand.
In a free society, officials like MKs, congressman, senators, whatever you want to call them (their names usually being dependent on the specific form of government) are elected for the purpose of establishing written laws that protect individual rights to life and property. In a free society that is (or should be) the only purpose of government. To go beyond that invites tyranny and rule NOT by law (as in a republic) or even the majority (as in a democracy) but by the elite who are in a position to manipulate public opinion (as in an oligarchy). As you may have guessed, Israel is today a (defacto) oligarchy, ruled (in effect) by those in a position to manipulate the legal and political process.
In a free and just society, laws must be written so that everyone knows what they are and so everyone has equal protection of the law. The purpose of the judiciary is, or should be limited to enforcing those written laws (thus ensuring equal protection).
When you permit the courts to overrule the duly elected government or its constitution, assuming it has one (limiting the power of government) then the court is in effect “writing law” by virtue of its own sophistry and dictum. It need NOT conform to the written laws established by those who were “elected” to represent the majority. This is tantamount to establishing a class of royalty, or nobility, a “class” that is answerable to no one, a class that can overrule a constitution (if it has one) or the rule of the majority (if it does not). Democracy (rule of the majority) is NOT a good thing (Two hungry wolves and one sheep can vote on what to have for breakfast) thus there is no guarantee of individual rights. More specifically, in a democracy, the opinion of the majority (the two wolves) is invariably shaped by the “nobility,” who extends favors to those promoting whatever self serving agenda the “royals” deem beneficial. Democracies inevitably descend, either into chaos (rare as in the case of some arab nations today) or powerful self-serving oligarchies, as is the case of Israel today.
Israel has no constitution to limit the power of its government, or its elite, and so until its form of government is properly limited, and until it provides equal protection to all of its citizens, we will just have to hope the will of the majority (or the elitists who shape the opinions of the majority) will conform to the basic minimum of what is necessary to perpetuate a reasonably just society (we’ve seen a great deal of evidence to the contrary).
Regardless of the details previously mentioned, any argument that the courts should be “independent” is ludicrous because the duty’s and obligations of the court must be wholly dependent (subject too) either a constitution that properly limits the power of government (as in a republic) or “dependent” on the will of the majority (as in a democracy) which is problematic for reasons previously mentioned. Either way, it should NOT be “independent,” lest it dictate according to its own political consensus. It is in fact utterly insane to assume the judiciary is without political bias. That is just one of the many reasons that Israel is in the mess that its in today. Absent a written constitution, an egocentric judiciary will consider ITSELF to be the “THE” constitution and “preserver of rights” (at least those they are willing to recognize) and we have seen just how well (and “equally”) they protect those rights!
Appointees who are “appointed” (or worse, who elect themselves) must be at the very least vetted to determine whether they understand these things, and will in fact “enforce” the laws written by the elected representatives of the people. The average Israeli may not understanding this, but at least they seem to be moving in the right direction (the current prime minister’s intransigence not withstanding). Still, the average citizen lacks an education in such matters and the many elected officials, well intentioned though they may be, are (also) ignorant of what constitutes good government, and/or why certain principles are essential for good government. Thus we stumble forward in the light of darkness, the blind leading the blind. Sad. Infuriating. There are any number of ways to describe the current situation.
Equally disturbing…
Many (ultra) religious people who could make a difference think they must wait for Maschiach, rather than accepting the responsibility of citizenship. The secular community goes along with whatever sounds good regardless of ethical consideration (often successfully manipulated by the elite). The answer? I could say faith in God, Torah etc., but that does NOT negate individual responsibility to establish and maintain real courts of justice. And under Israel’s present form of government, that requires the participation of every (hopefully sane) individual, not just the national religious or secular who may have a sense of right and wrong.
It’s a vicious and self perpetuating circle of ignorance that is not going to correct itself.
Excellent analysis of a truly appalling setting that has violated the most basic rights of the people while it has used all of the tools of tyrany to remain in place for many decades.
In Israel the word “democracy” has been just as prostituted as the word “peace” and by the same cadres of the lawless self appointed.
It is high time to clear the system from that element.