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Friday, December 02, 2011

Let Israel have truly independent courts

I've talked a bit about the battle we are having over attempts to change our judicial selection process to make it less rigged. In fact, on Thursday, Supreme Court Chief Justice Dorit Beinish, gave a self-righteous speech in which she accused the Knesset of attempting to harm the Court's independence. (If you follow that link, you will see that she has now limited her lecture to 'some' members of the Knesset). Beinish is retiring in two months, and wants to appoint her successor just like her predecessors did. But as Professor J.P. Golbert points out, what Beinish is actually doing is attempting to protect the tyranny of the Supreme Court's Chief Justice - and not the Court's independence (Hat Tip: Elihu Stone).

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?


The foregoing is an original piece written by Prof. J.P. Golbert. It has never been published. 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.

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