"Any action is permissible or prohibited in the legal world. There is no action to which the law does not apply ... The argument, 'the matter was not a legal matter but a clear political matter', mixes sex with a non-gender. Being 'clearly political' cannot remove that matter. "It is also a 'legal matter.'
Judge Aharon Barak, HCJ Reseller, para. 36
"Everything is fair," said Judge Aharon Barak at the time, the man who is most responsible - for better or worse - for the judicial revolution that has taken place in the State of Israel in recent decades.
There is no doubt about the intentions of Barak - a proud Zionist and jurist with supreme grace, who sincerely believed that he was working for the benefit of the state and society in Israel.
Ayelet Shaked,
However, the consequences of the revolution he led greatly undermined the balance between the authorities in the country, making the judicial system the supreme authority - even in cases where court rulings and even the decisions of professional bureaucrats trample on Knesset and government decisions.
To many, the struggle to "save democracy" in whose name the system operates has in fact become a campaign to replace it with a system of government in which a minority of jurists run the country.
Now, it is possible that an opening is about to open for a change in trend.
These are significant times for the justice system: in a relatively short time, four Supreme Court justices will be appointed to replace Hanan Meltzer and Menachem Mazuz, who have already retired, and Neil Handel and George Kara, who will retire this April.
In a few months, the court will change its face.
As always, a fierce struggle has broken out between the Conservative camp, which includes representatives from the opposition and the coalition, and the activist camp, which includes the Supreme Court justices.
At this point, it seems that Khaled Kabov and Ruth Ronen, who will soon be considered a red sheet for the conservative camp and close to the New Israel Fund, will be appointed alongside two conservative judges whose identities are still unclear.
Under pressure from the Bar Association, one of them will most likely be a private lawyer, and the conservative camp is discussing the days unless it is Nati Simchoni or Kobi Sharvit.
The camp explained that since the retirement age of Supreme Court justices is 70, it is better to have Ruth Ronen, who has a decade left to serve as a Supreme Court judge, than the director of courts, Yigal Marzel, Barak's protégé, who if elected will serve for the next 20 years.
Yossi Beilin and Benjamin Netanyahu,
In February, Avichai Mandelblit will also retire, after one of the most tumultuous terms known to the ombudsman, in the shadow of the Netanyahu trial and the struggle for the position's power. Legal to the government on the other hand.
In October 2023, two more Supreme Court justices are expected to be replaced - Supreme Court President Esther Hayut, who will retire and be replaced by Justice Yitzhak Amit in accordance with the prevailing seniority system, and Justice Anat Baron.
These are two distinct activists who will make room, perhaps, for a different approach.
Thus, within one term, six of the top 15 judges will be replaced.
This is a change of an extraordinary magnitude, which will affect the justice system over many years.
For many years the Supreme Court enjoyed a power that grew stronger, as it conferred on itself more and more powers and encountered exemplary silence on the part of the executive, which at best heard grievances here and there.
The Supreme Court has gradually become the most powerful governmental entity in Israel, so there is special weight to the questions of what it will look like after the change of face that is expected to take place in the coming years, and what needs to happen for the balance of powers to return?
Shaked's blitz
The constitutional revolution, which began in the 1990s during the tenure of then-Supreme President Aharon Barak, continued unabated for about half a century, until she took over as former Minister of Justice Ayelet Shaked.
Netanyahu in a special statement at the opening of his trial, Reuters
Shaked managed for the first time to form an alliance with the then chairman of the Bar Association, Efi Naveh, thus changing the almost automatic majority of judges on the Judicial Selection Committee. , And about 200 who are considered conservative. But the highlight of her tenure was changing the trend in the Supreme Court, which also serves as the High Court of Justice (High Court), and in this role often intervenes in political, security and even key appointments to other key authorities.
"When I entered the Ministry of Justice, Judge Noam Solberg was almost the only conservative in the Supreme Court," says Shaked, who currently serves as interior minister.
"I understood that no matter what laws were enacted - the judges could always give them a far-reaching interpretation, according to their worldview. At that time our party was opposed to any change in the judiciary and the Basic Laws, so I came to the conclusion that the most important thing is the identity of the judges. In court".
Indeed, Shaked has managed to appoint no less than four Supreme Court justices who are considered conservative in their approach: Alex Stein, who was "imported" especially from the United States, David Mintz, Yosef Elron and Yael Wilner, who serve in the Supreme Court to this day. " In court, "she boasts of the achievement.
Shaked also confiscated from the High Court the exclusive occupation of settlement and transferred it to the District Court, changed the procedure of state responses to the High Court - given by the ombudsman and until then often contradicted the government's position - and made changes to administrative sections, the most famous of which It is the "market regulation", which, thanks to its change, the ombudsman approved to regulate thousands of housing units throughout Judea and Samaria.
Haim Ramon, Photo: Oren Ben Hakon
However, this change in trend was stopped with the dismissal of Shaked by then-Prime Minister Benjamin Netanyahu, the entanglement of the chairman of the Bar Association, Efi Naveh, with criminals and the termination of the alliance between him and Shaked.
The appointments were halted until the convening of the Judicial Selection Committee by the new Justice Minister Avi Niskoren, who had completely opposite agendas.
"The alliance that was with the Bar Association is a historic move that has not been restored since. Disconnecting the Bar from the judges was a strategic move," Shaked says.
What needs to be done in order for the trend you started to continue?
"I think we will be able to make good appointments in this term. Today the Bar Association maintains independence and is not in an automatic alliance with anyone. I assume that at the end of the term there will be equality between the camps in the Supreme Court. "Nadi between me, as the representative of the coalition, and Simcha Rotman who is the representative of the opposition, and together with the chairman of the committee, Gideon Saar, we will succeed in doing good to the people of Israel."
"There is no equal in other methods of government"
Professor Daniel Friedman, a former justice minister who was a pioneer in the fight against Barak's judicial revolution, explains that not only has the Supreme Court acquired excessive power, but also the prosecution and the ombudsman institution. , At the expense of the legislature (Knesset) and the executive (government).
"In fact, there is a combination of the powers of the court with the public justice system. This combination of the ombudsman, the court and the prosecutor's office - although in theory the ombudsman and the prosecutor's office belong to the executive and the court is the judiciary - is the most powerful force in Israel today. The one who created the ombudsman is the one who gives instructions to the government. "
According to Professor Friedman, there is a clear interaction between the court and the legal bureaucracy: "The Supreme Court has given the ombudsman power and powers that he never had, and the ombudsman for his part strengthens the court and supports it."
How is this reflected?
"For example, the Supreme Court's ruling that the ombudsman's opinion is binding on the government, in addition to the fact that the government has no right to legal representation if the ombudsman does not approve it."
In fact, Friedman describes a situation in which the ombudsman became a consultant, as the original definition of the position, a determining authority that enjoys superiority over government ministers and its head.
Professor Friedman also alludes to the Netanyahu trial: "The idea of an offense of 'fraud and breach of trust' is very broad, thus giving almost unlimited power to interrogate public figures. It does not exactly correspond to the separation of powers. The public and the laws of the court that greatly strengthen the prosecution, contrary to all the principles of human rights and constitutional law. "
Daniel Friedman, Photo: Wikipedia
In Friedman's view, Israeli governments for generations have been to blame for the situation because they accepted it without lifting a finger: "The law gives the government extensive powers, but the courts have curtailed them through laws and rulings. In any situation, public figures who want to reform the judiciary may fear the opening of veteran investigations.
"The ruling that there is a right to appeal to the High Court for any person, even if he has no personal interest in the case, and the ruling that the court can intervene in government decisions if they seem unreasonable - and that means intervene in almost everything, including appointments - are not based on laws. The foundation.
Interpreting what is against and what is not against basic laws was another step in the legal revolution, and in the ability of the legal system to control many issues in our lives.
"It's something I do not know if there is no brother or sister in other regime methods, but the government has not responded to it and so it has become a fait accompli."
What needs to happen to balance this?
"We need an audit system for the prosecution system. The prosecution system now has complete immunity even when there are suspicions of offenses - for example, prohibited leaks, or in the case of Haim Ramon, concealment of wiretaps. We need an independent control system that can check these things, "Effective criticism of the prosecution. In addition, there is a need to reduce the ability to intervene for reasons of unreasonableness. It takes courage to deal with this system, and there are people who have concerns that it might be unhealthy to do such things."
The impact of Netanyahu's portfolios
Former Justice Minister Yossi Beilin takes a different approach and attributes to Benjamin Netanyahu the feeling that the justice system has been overly intensified, and the crisis of confidence created in her: " Does the Prime Minister feel this way? Why are we not allowed to express this? '
It created a wave of distrust in the State Attorney's Office until it became, in the eyes of parts of the public, a political factor that is run with a cruel hand and sins in some conspiratorial planning. "
Aharon Barak, Photo: Gideon Markowitz
According to Beilin, this is very reminiscent of the effects of Trump's tenure, although he says Netanyahu even surpasses the former US president: "I think Netanyahu saw the unbearable ease of what Trump did in shattering the taboos, and said to himself, 'Why can I not do such a thing?' "And to a large extent he did. I do not blame Netanyahu for the whole thing, but I have no doubt that he had a hand in harming institutions like the police and the judges."
What do you think about the justice system and its power?
"I think our systems of government are balanced."
Beilin, however, agrees with the claim that there is no critical body with teeth on the justice system: "No one likes to be criticized, and there must be a body that criticizes these people, who have a lot of power."
What do you think will happen in the coming years?
"I am very afraid of the future to come. The Supreme Court has never been a branch of Meretz. There were people from different political identities who did not know what they were. Very few of these figures reached the political level because they remained judges in their conduct even after they retired.
"Today politicization has been legitimized. A person is pre-painted as a conservative or an activist, and you expect certain decisions or judgments from him. But the nice thing is that in practice this is still not the case, and you can not automatically know the outcome of the judicial process."
Beilin feels that the justice system has been wronged.
"We will make a terrible contempt of court. We have no more court, just as we have no more army. Right now we see how important the court is when injustice is done to the opposition, in the matter of unfair representation on Knesset committees. There is an unbearable ease of harming the court. "Those who do this do not take into account the situation in which he may be rescued."
Targeted Killings - Version of the Legal System
Former Justice Minister Haim Ramon has a firm opinion that the power the court has acquired at the expense of the executive and the legislature violates the principle of separation of powers and even democracy itself: The Knesset, but Aharon Barak did not recognize this. "
Supreme Court, Photo: Oren Ben Hakon
What can the other authorities do to prevent the judicial authority from being over-influenced?
"The government can enact laws and enforce them when needed for an overruling clause, an idea that Barak himself initiated at the time. In addition, it can work to change the composition of the Supreme Court and establish a separate constitutional court.
"All the same restrictions that were imposed on democracy did not exist during the old Supreme Court period - for example, various search committees, such as the one that disqualified Amir Peretz and Yair Shamir for the position of IAI, even though Peretz was defense minister and Shamir is a senior pilot in the Air Force. With rich business experience. "
Ramon does not expect a change in the face of the Supreme Court, since the shoes of the president will be entered by Judge Yitzhak Amit, who is known as a clear activist.
"He's an anti-Democrat, and by the time Solberg arrives (who will replace Amit, YA) it will be almost a decade, so I do not see any change. In the end, it is the president of the Supreme Court who determines the composition. And Mazuz was present in almost all the discussions that dealt with immigrants, with Vogelman's position being that the whole of Africa should be brought here because we are humane people. "
Ramon does not believe that the current Minister of Justice, Gideon Saar, will succeed in carrying out the reform to which he pledged: That.
He has no support and he needs to do this reform by consensus.
"Everything has become for or against Bibi."
What do you think will happen in the coming years?
"Dramatic things need to happen in order for there to be a change of trend. In the meantime, a dictatorial regime of part of Israeli society that has entered into an alliance with the Supreme Court will continue. Today in the Knesset there is a majority of Dropping Bibi was more important than anything else.
The prosecution systematically eliminates anyone it thinks wants to come out against it.
You come up with a reform - and suddenly you find yourself with an investigation. "
What do you think about the bill to ban a criminal defendant from forming a government, and the bill to limit the term of office of a prime minister?
"No democratic state has such a law, so it is probably not a democratic law. We are the only parliamentary regime in the world where the ombudsman concentrates such powers, the only regime where the court concentrates such broad powers, and in the Judiciary Selection Committee some of the judges are so central. ".
High Court Party
MK Simcha Rotman (Religious Zionism), author of the book "High Court Party", serves as the opposition representative on the Judicial Selection Committee.
He said, "If you analyze the rulings and actions of the High Court from a legal point of view, you will not understand what it is about.
They (the judges, YA) operate as a party with political intrigue and this is also reflected in the process of appointing the judges.
There was a long-running move here that everyone who opposed it found himself complicated.
"Aharon Barak appointed people in his image and likeness, and anyone who had a shred of independent thinking did not find himself in the Supreme Court."
MK Simcha Rotman,
Rotman lists three main dangers that he says lie in the excessive power of the Supreme Court:
Control of politicians: "The Netanyahu trial is a prime example of an event in which a legal system decides for very trivial reasons, and through a case that does not hold water, to 'frustrate' a prime minister. This is a government coup. For years the legal system has been trying "Right to left. The trend is that we should control and not the other side, and a major way of controlling politicians is the criminal procedure."
Irresponsible authority: "Decisions by the court that have enormous consequences, but the government is responsible for them. Infiltrators, land, construction issues - all are part of the same phenomenon."
Political polarization: "The political system today is the result of legal activism - you can only do what the court approves of you. There is no trust in the political system, and the public and elected are frustrated because policies can not be implemented by electing Knesset representatives by the democratic majority."
What should the government do to mitigate this?
"The change in trend will begin when the overcoming clause is enacted and they say that the last word is ours - the public and its elected representatives. I think the High Court will also reject it, and I argue that in such a case the government should ignore it.
If the court does not respect the laws of the democratic system, then why should I listen to it and not to the Dairy Council for example?
I am very concerned that some Supreme Court justices do not see a limit to their power.
The very fact that they are discussing basic laws is a toy in a government coup. "
Are you optimistic about changing the face of the Supreme in the coming years?
"The surface will indeed change in the coming years, but the question is in what way. When such crises occurred in the world came to the dismissal of all judges, took drastic steps to address the gap between them and the public. This happened in India, Hungary and Poland in response to extreme court rulings.
"It is possible to make this change gradually, if we know how to produce judges who enjoy the trust of the public. If we do not succeed then a lot of people will be convinced - and I can not say wrongly - that the court can not be changed gradually. Meanwhile, the court takes advantage of the indecision Of some Knesset members, but a determined government with a coalition that has a solid majority will do the job quickly and the court will not be able to. "
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