The case for evaluating the power of Israel’s judiciary

With the help of the court, the attorney general’s office has gradually morphed from adviser to virtual boss; he can strike down the policies of the same politicians that he is authorized to open criminal investigations against.

The Israeli Supreme Court in Jerusalem. Credit: Wikimedia Commons.
The Israeli Supreme Court in Jerusalem. Credit: Wikimedia Commons.
Gadi Taub poses for a portrait at Columbia University, Monday, October 02, 2017. (Photo Credit: Natan Dvir)
Gadi Taub

The Israeli general elections on April 9 are shaping up as a kind of referendum on the future of Israeli Prime Minister Benjamin Netanyahu. Facing three possible indictments (pending a hearing) on one charge of bribery and two others on the lesser charges on “breaches of trust,” Netanyahu will be up for re-election on a virtual vote of confidence on his innocence or guilt. But behind the question of personal guilt looms a larger issue that is gaining increasing presence in the country’s political discourse: judicial supremacy.

Elections in Israel do not usually revolve around such relatively abstract questions; they usually fought over war and peace. But recently, there seems to be little controversy over these: The peace process has reached a cul-de-sac. Theirs is not disagreement on Netanyahu’s firm policy against Iran’s attempt to establish itself in Syria, and the low-intensity conflict with Hamas in Gaza can only managed, it seems. Plus, the economy is booming.

The center of this heated debate is the possible indictments against Netanyahu. But this is a just a front, or a proxy, to the underlying issue that is rarely apparent outside Israel since its context looks arcane from afar. But for Israelis, it is anything but. We experience it day by day, and we read about it on front pages. Because about our government lurks a virtual uber-government composed of jurists.

Nowhere in the Western world does the judiciary, along with its auxiliaries in other branches of government—notably in the office of the attorney general—hold such vast powers. It is a unique feature of Israel’s young democracy.

This may sound strange since Israel doesn’t have a constitution. But that didn’t stop a unilateral power grab by its Supreme Court, which retroactively declared Israel’s constitution-in-the-making, a set of laws designated as “Basic,” to be enough of a basis for striking down ordinary legislation. Moreover, there are statements in judicial decisions suggesting (obiter) that the court has power to exercise judicial review on Basic Laws as well. A case relating to this issue is now pending before the court. This is way beyond any Marbury v. Madison maneuver. It is tantamount to the U.S. Supreme Court considering the constitutionality of the constitution. But perhaps no less outrageously, the court gave itself the authority to intervene in decisions of the other branches—not just on an assessment of their constitutionality, but also on its assessment of their so-called “reasonableness.” This is tantamount to giving the justices permission to impose their opinions on Israel above the heads of our elected representatives. Much of this was the work of our very own John Marshal on steroids: Chief Justice Aharon Barak, whom Judge Richard Posner has dubbed a judicial pirate.

But even this is perhaps less strange than the role of the office of the attorney general itself. The position serves both as the government’s legal adviser and as head of the prosecution. While this is a unique concentration of contradictory powers, it’s not all. The Supreme Court has decreed that the attorney general’s advice on legal matters (in this case, the current Avichai Mandelblit) is binding on the government, and that he is the sole representative of the government in court. In this capacity, he is free to argue against the position of his clients, and at the same time can gag the government and forbid it to use any other legal counsel in court. His opinions, then, override that of minsters and prime ministers. This, too, was the work of Chief Justice Barak (recently, a number of Supreme Court justices have expressed their opinion that this gag is legally dubious, and so the matter is, as of this writing, open for reconsideration).

With the help of the court, the attorney general’s office has gradually morphed from adviser to virtual boss; he can strike down the policies of the same politicians that he is authorized to open criminal investigations against. Given the many incestuous circles and revolving doors between this office, the supreme court and the whole apparatus of prosecution and law enforcement, it is no wonder that politicians have developed a very lively prejudice regarding bad luck in criminal justice, which one may incur if one stands up to these guardians of “The Rule of Law.” Indeed, there has not been a single prime minster in the last two decades who has not been under criminal investigation of one sort or another. Two have been removed in this way so far (one long ago, Yitzhak Rabin in 1977, and another, Ehud Olmert, in 2009). So the possibility of removing a third is causing a widely rippling political convulsion.

What makes all this specifically explosive is the fact that in Israel, as in the United States, the image of the “Deep State” (or as journalist Erel Segal has aptly called it, the “Deep Shtetl”) is that it is decidedly left-leaning. This view is hard to dismiss as crank, right-wing conspiracy-theory material. Prominent liberal legal scholar Menachem Mautner, for example, has argued convincingly that the left, having lost its long time monopoly on electoral politics, retreated into the judiciary and developed a corresponding theory of judicial supremacy. It also secured de facto control of the appointment of judges, which in Israel is a “professional,” rather than a political, process.

So things have come to a head with the Netanyahu indictments. His supporters feel that an elite hiding behind legalistic excuses is trying to impose itself over and above the election process. Many of them are convinced that the charges against Netanyahu have been blown out of proportions or have even been completely fabricated. This may or may not be true. We’ll have to await the evidence and then the verdict to begin to debate the issue on anything like its merit.

But even if the prime minister will be found guilty, the underlying issue will not go away: The result of this round of elections is likely to decide for a long time to come whether the executive and legislator will surrender sovereignty to the judiciary branch, or stand their ground and begin healing Israel’s democracy.

Gadi Taub is a senior lecturer at Hebrew University’s Federmann School of Public Policy.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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