The legal reform, the first part of which was approved this week by the Knesset plenum in the first reading, only looks like a new initiative and the first of its kind, certainly given the extent of the protest against it. But a perusal of the minutes of the Knesset's Constitution Committee and bills over the past three decades reveals that there were those who tried even before Justice Minister Yariv Levin and Constitution Committee Chair Simcha Rothman to correct the system of balances between the authorities, to protect the independence of legislation in the Knesset and to change the composition of the Committee for the Appointment of Judges The players changed, the proposals were reformulated, but one factor remained constant: the need of the right, and sometimes also of the left, to fix the system.
Dealing with the issue has become frequent since the signal was given for the legal revolution led by former Supreme Court President Aharon Barak. In the past three decades, the Knesset, as well as the executive authority, have tried to restore the balance on several occasions. For example, only four months after he took office (12.19 95) President of the Supreme Court Aharon Barak hosted a special meeting of the Constitution Committee at the Supreme Court.
The members of the Knesset want to discuss the tension between the Supreme Court and the legislative authority, establishing a special status for laws, establishing a constitution, and even the need not to annul laws but with an absolute or broad majority of judges only. MK Dan Meridor, then of the Likud, says that "the determination of The special status of the laws, so that it will not be unbearably easy to violate the constitution... A third thing that needs to be done [is] to make it more difficult to annul laws by stating that only the Supreme Court, and only in a broad composition of its judges, if not all of its judges, will be authorized to do It".
Later in the discussion MK Sylvan Shalom touches on the point of diversity required in the Supreme Court.
His words sound as if they were spoken these very days: "There is no doubt that a decision to repeal laws will be derived from the nature of the composition. Each person is not a template of the landscape of his homeland but the template of his perception. In the circles I am close to politically, some say that the Supreme Court will mean that the same views that we do not Those who support and disagree with them will continue to control the dome.
We will be in the majority in the people, in the majority in the Knesset, but the Supreme Court will think differently. This is something that could lead to a conflict that I think should be avoided."
In contrast to these two who point out a moderate need for change, MK Eli Goldschmidt from the Labor Party tells the members of the committee that the supremacy of the judicial system must be strengthened: "I want to touch on a very delicate point.
I have already said on a certain occasion to the President - I am not so sure that the last correct word belongs to the legislative authority.
The level of the legislative authority is changing, and not for the better.
The next electoral system against us will certainly not stop the process.
There are considerations that are definitely not relevant to legislation on many issues, and I think it is good that there is some kind of supreme authority that sometimes comes to make some order and add thinking and common sense."
The President of the Supreme Court, Aharon Barak, then speaks at length to the members of the Knesset, only four months into his new position, and rejects most of their claims out of hand. There is no need for diversity, laws can be invalidated, and there is no need for the Constitutional Court and the expropriation of powers from the Supreme Court. Barak's consistent position in this debate, and in other debates from then until the present day, were a magnet for those who sought to fortify the position of the Supreme Court without changes throughout the years.
"I think it would be a disaster for our society and our law if in this small country, which has only one court, another court was built in addition to the constitution. I want to tell you: the world is envious of the system we have. I meet with judges from all the courts The Supremes, I meet with presidents of countries, with ministers of justice, they have already studied our system and they come to ask how it works, because they are thinking about adopting our system specifically for the constitutional courts. I don't understand why we have to come out on something so fundamental , in a thing that works so well for us," Barak then wonders.
He adds: "The Supreme Court does not need to reflect the power structure in society, the political power structure or any other power structure - it should be an expression of society's values.
I definitely agree, the judge should not express his personal values.
He should not run to his personal values, but he should give expression to some concept of social consensus [of] the enlightened public...".
"The consensus is broken"
Four years later, on November 29, 1999, the Constitution Committee meets.
The purpose of the discussion: an interview by Prof. Ruth Gavizon in which she criticizes the Supreme Court. Justice Minister Yossi Beilin, on behalf of Meretz, refers to the problems in the divided Israeli society and says: "There was an agreement between the different sides of Israeli politics that there is a way for the minority and the majority and that there is Police, and there are prosecutors, and there are courts, and there are systems that decide. And what has happened in recent years, and it can be attributed to all kinds of things, is that this consensus has also broken, and today there are big question marks about the rules of the game."
Beilin continues and raises questions about the way in which the judicial system is criticized: "The court is faced with the problems, when it is attacked from different sides, and more than once is physically threatened and needs personal security.
And everyone is allowed to criticize, and no one is immune from criticism.
I would say more than that: they are all a must visit.
The question is if we want the rule of law here, if we want a truly democratic and free country here.
How can we on the one hand back up and strengthen these systems, and on the other hand criticize them in a way that does not harm their existence.
There is no school answer here."
MK Moshe Gafni (Torah Judaism) attacks the liberties taken by the Supreme Court to rule in places where the politicians refrain from deciding.
"We are in a problem. This reality, where the judicial system, and especially in the Supreme Court, and especially after its president said that everything is fine - we have entered into a problem.
We as a Jewish and democratic country have entered a problem that needs to be dealt with.
We cannot come and say that whoever criticizes this method or way is against the rule of law.
"What happened with the Supreme Court on issues that the Knesset did not decide on, but has been doing so since it was established?
They took it to the Supreme Court, and the Supreme Court came and cut with a sharp knife.
He did it very nicely of course, he said: I am returning it to the Knesset.
He knew that the Knesset would not make a decision, and he knew that the Knesset could not make a decision.
How many times have they tried to pass a law here to recruit Yeshiva students?
It never passed.
He came to the Supreme Court and said: If you do not enact a law within a year, I will decide..."
Former MK Michael Kleiner: "We have to decide one of two: if we see judges as interpreters of the law, professionals whose job it is to review laws - it doesn't matter what the worldview is, it doesn't matter what the background is.
For me, in such a case, if the best 14-13 people came from the same town from Germany, it doesn't matter at all.
But if I, as a member of the Supreme Court, also take on a legislative role, then the question already arises as to whether as a legislator of the Supreme Court, I should not reflect the entire range of prevailing opinions in the country, according to the same logic that Mrs. Gavizon explained in civility and delicacy."
"Lightning was omnipotent", photo: Oren Ben Hakon
On November 22, 2000, former MK Eliezer Cohen (Chita) from the Israel Beitenu party placed on the Knesset table a bill to establish a Constitutional Court, and even managed to pass the law in a preliminary reading with a majority of 52 supporters against 27 opponents.
But then the Constitution Committee convenes under the chairmanship of former MK Ofir Pines (Labor), and he blocks the law together with Supreme Court President Aharon Barak.
This is the significant attempt that came to the committee's table in those days, and even managed to pass a preliminary reading before being completely thwarted.
Three Knesset members from those days tell in an interview how they fought for the law to be passed, or alternatively to be shelved.
"Aharon Barak sat in the Knesset and overturned my law for the establishment of a constitution," recalls Eliezer Cohen in an interview with "Israel this week".
"He came to the committee and shouted at the members of the Knesset. I remember going to Yossi Beilin, Ehud Barak's Minister of Justice, and telling him: 'I am not a politician, neither right-wing nor left-wing. I have management proposals for the State of Israel to finish our independence process.' For a year the country has been run in a failed way without an election system and without a system of government and without separation of religion and state. Only two countries today are run by religion: Iran under the Ayatollah regime and Israel with Gafni and the Hametz law. We have no sovereignty. Jerusalem is the capital of Israel and they want to divide it in half, that's sovereignty What is our border in the east? I wanted to include all of these in the constitution."
"Lightning? We would throw it away"
Cohen is also very critical of the process of appointing the judges, where the judges have the power to determine who will be appointed.
"Barak turned the Supreme Court into a private members' club.
He left out Prof. Ruth Gavizon, because she was not a follower of his word.
And as if everything was fine with him, in the Labor government Aharon Barak did what he wanted.
He sat in the Knesset and shouted at members of the Knesset." It should be noted that President Hayut was invited to the Constitutional Committee to participate in the discussions on the legal reform, but unlike Barak she chose not to participate in them as part of her protest against the reform as a whole.
Cohen also recalled the tour made by the members of the committee, and he was among them, to Canada and the USA in those days. "Yuli Tamir, Miki Eitan and Yuli Edelstein were standing next to me, and I said to the American Chief Justice Antonin Scalia (who is known as a conservative): 'You know that Aharon Barak sits in the Knesset and shouts at my members A Knesset that enacts laws?', and he told me: 'With us, they would throw him down all the stairs.'
The biggest offender of democracy in Israel is Aharon Barak.
He was omnipotent in the 90s-80s-70s, he dictated the damage to the status of the Knesset."
On the other hand, the person who served in those days as chairman of the Constitutional Committee, former MK Ofir Pines, describes how he fought against the bill with the support of the President of the Supreme Court. Pines, now a leadership lecturer in the Department of Public Policy at Tel Aviv University, retraces his steps in those days: "There was a pretty severe attack by a part of the Israeli right by that bill to establish the Constitutional Court, and I, as the chairman of the committee, as soon as I opposed the law - it had a very significant weight on how the discussions would take place and who I would invite to them.
Indeed, I invited the supreme president at the time, Barak, to help me repel this attempt, and I recruited Ariel Sharon to help me and Justice Minister Meir Shetrit."
What threat did you see in the establishment of the Supreme Court to the Constitution?
Pines: "I saw it as an attempt to undermine the powers of the High Court, that the High Court will not interpret the Basic Laws, but in another Supreme Court that will also be composed of former politicians, people who are not independent, and not necessarily elected by qualifications but by representation. I saw this as a danger to the independence of the High Court and a tattoo of the High Court and a reduction in its status. This was a very great achievement in my political career. I invited Aharon Barak to the committee and also the Minister of Justice, because it is about balances between the three authorities, And as soon as they wanted to harm the judiciary, it is right that the members of the Knesset should hear those who may be harmed by the legislation.
"I think that MK Rotman would also be happy if the President of the Supreme Court would come to the hearings of the Constitution Committee these days.
But I agree with Chita, I have no doubt that Barak's presence in the committee had significant weight.
Along with that I think it's super legit.
He sees a threat to the system he is in charge of and tries to protect it and its powers.
It happens in a similar way in every other committee in the Knesset."
The original "Just not Bibi".
The person who was a participant in those attempts by Chita is a former MK on behalf of the MPD Yigal Bibi.
"All the laws that Levin and Rothman are bringing up today, I brought up at the time. Eliezer Cohen and I preliminarily transferred the court to the Constitution, and Barak said about this law: 'This cockroach should be killed when it is small.'
We had a large majority in the Knesset for the Constitutional Court, and Sharon suffocated it. In my estimation, because Barak told him, 'Decide: either prison or kill this law'. In any country where a judge tells the Knesset to kill this law - he would go home."
Bibi refers to claims from the right against the invalidation of laws by the High Court and claims: "People are deceiving themselves when they only talk about the invalidation of twenty laws, the High Court is present in all the decisions. I will not forget that I succeeded in passing a law that prohibits pornographic broadcasts on television channels and I succeeded in uniting the right and the left, I passed the law and I received letters of support. 'Playboy' went to the High Court because they lost millions, and I went to the hearing and showed the protocols of an education committee on the law.
The court sat with a panel of 11 judges, it was Dorner's last trial, and she said then that 'Playboy is part of Israeli culture'.
This sentence wakes me up, Lord of the worlds, you determine what the values are?
It gave me additional fuel to act against those people who not only reject laws but also the identity of the country."
Bibi was a member of the committee for the appointment of judges for many years and describes an atmosphere of "a friend brings a friend": "I coined the slogan that in the court a friend brings a friend and I was a buffer especially after Barak was appointed supreme president and I was his toughest opponent and the most slandered man in the country.
Even my friends were angry with me for speaking like that to the judge and I heard them say to me 'Yigal is impudent, Yigal does not represent us'.
Both Netanyahu condemned me and the president of the country, but I didn't give up."
Bibi has documentation for the selection procedures in the committee from the recent period.
30 years ago, when I was a member of the committee for appointing judges, Gershon German was a candidate to be a judge.
He came with a big cap, a beard and tassels on the outside, a religious Jew and an excellent jurist.
And I see that every day people vote for all kinds of prosecutors, and he is a great jurist and a wise student and he is not elected.
And more sitting and more sitting, and it doesn't work.
I said: I'll speak in a different tone and I said to my friends: 'You can't see a man with tassels outside and a beard in the courthouse?'. Shamgar understood that I was angry and in the end they chose him too. And he retired now. You could see that the same profile of people was being chosen."
He also attributes the choice of a certain model of judges to Barak, and claims against him that even after the end of his term as president of the Supreme Court, he sat in the office assigned to him in the Mishkan, and from there he managed his affairs. "It is clear to me that he dictated to them for 20 years what he wanted even after who finished the job.
Any decent person who compares the former judges to the ones sitting today sees that it is a different level.
Aharon Barak duplicated his people, but not at the highest level but according to their level of discipline.
There are great and serious jurists today, and he didn't choose them."
The former members of the Knesset, of course, also have something to say about the legal reform that the coalition is currently leading in the face of the fierce opposition of the opposition members.
"I have been waiting for this moment for 30 years. I told the guys that I would make a feast if the law to change the committee for the appointment of judges passes," says Bibi.
"At the time, I was supposed to be elected to the committee for appointing judges for another term, and the coalition decided to put me forward as a candidate. But then Aharon Barak acted against me, he established a Knesset against me: 'Only not Bibi,' the original.
It really is a holiday.
With all due respect to these protests, this is not a law against democracy, on the contrary."
Chita, like Bibi, treats these days as holidays and calls on the coalition to complete the legislation.
With regard to the surrogacy clause proposed in Rothman and Levin's legislative package, Chita reveals the origins of the idea and says: "Do you know who brought the surrogacy clause to the State of Israel? Miki Eitan, former chairman of the Constitutional Committee.
During that visit to Washington and Canada, we met a dear Jew, Erwin Kotler, one of the three greatest jurists in the world who was Canada's Minister of Justice at the time.
When we complained to him about Barak, he offered us the Canadian override law which says that after the Supreme Court asserts that a law is unconstitutional, the parliament makes amendments and passes the law again."
On the other hand, Pines is worried about the proposed package and fears politicization that will seriously damage the status of the Supreme Court. "Q in any court can invalidate laws.
There are amendments to the law today that are being debated - I don't like the overcoming clause by any majority.
I'm a pretty radical person in my relationship to the justice system, I admit.
I don't want a superseding clause at all, but I can understand those who want a majority of 70, a majority of the number of coalition members plus five - I can live with that."
But he devotes his most vehement opposition to the wording of the bill to change the commission for the appointment of judges that will grant a permanent majority to the members of the incumbent coalition.
"It is impossible to agree that the coalition will appoint the judges because they will become on behalf of," he rules.
"The court should be diverse, the Supreme Court should be enlarged and the judges should be selected by the same professional committee, but demand that judges be brought in from diverse backgrounds, and leave them independent. We must not let those who are elected judges be businessmen, lawyers who are connected to the government - this will create politicization of the system".
"Ben-Gurion is guilty"
Pines is also concerned about the intention to eliminate the reason for reasonableness and reduce the power of legal advisers to the government, describing these laws as "delusional".
According to him, "Politics has no limits and is insatiable. I tell you this as a former politician. I was in politics for 15 years, you know how many debates I sat in where it was said 'but what will the ombudsman say?'
And 'does it go through the High Court', and this is how the system restrains itself. This is very important to me. I tell you these things even when I know that there is an excess of legalization, and that there were times when the legal advisors got confused and thought they were the CEOs or the ministers.
I also had arguments with them, so there is definitely room for improvement - but from a good place that wants to improve and not destroy."
At a time when it seems that Israeli society cannot find a single common point of agreement, former members of the Knesset agree on one culprit for the crisis that Israeli society has fallen into - none other than the first Prime Minister, David Ben-Gurion.
"Until there is a constitution in the State of Israel that states in it who we are, and what the State of Israel is for us, what our right is to this land, and what our system of government is, and that religion remains in the synagogues - we will not know rest. The only thing Ben-Gurion was afraid of when he was in office were the rabbis. He had respect for the rabbis and he gave the ultra-Orthodox absolute control over the rabbis and also postponed the establishment of the constitution at their demand,"
says Chita.
Pines also returns to the changes in the founding of the state, saying: "The real culprit in this situation is Ben-Gurion, who did not establish a constitution as we committed to in the Declaration of Independence. Since there is no serious constitution for Israel, Israeli democracy is more vulnerable, and the debate between the authorities cannot end."
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