המרכז המדיני לישראל

למדינה יהודית דמוקרטית (ע"ר)

The Israel Policy Center

An ISRAEL POLICY CENTER Background Paper

Politics and the Legal System in Israel

The Israel Policy Center has taken reform of Israel’s justice system as one of its main areas of activity. This is because Israel’s justice system exhibits persistent political bias. Politicians and ordinary citizens whose views are not considered “politically correct” by the existing legal establishment can be subjected to gratuitous legal harrassment, while people of “correct” views enjoy legal immunities denied to others. Court cases are often decided in a manner suggesting political bias, with identical cases being decided in opposite ways, depending on the political identification of the parties to the case (See Table, p. 3)

Israel’s Supreme Court is the key institution in Israeli public life today. Described as “the most activist court in the world,” it is the ultimate arbiter of all political decisions. Any appointment to senior civil service office, or to a Government ministry, may be appealed to the court. The court will often decide the issue on the basis of what it considers “proper,” without reference to any law. Similarly, it will strike down laws duly passed by the Knesset, even though without legal authority to do so, simply because it holds that its decision is morally correct. Thus the individual consciences of the judges, rather than the law as passed by the people’s elected representatives, governs the country.

The court’s conscience today is pretty much opposed to the idea of a Jewish state. It strikes down legislation that has been at the heart of Israeli policy since the country was founded as well as laws the Knesset passes to protect Israel against those seeking to destroy it. Some examples:

§ A fundamental principle of Zionism is using land to settle Jews in Eretz Yisrael. The Jewish Agency has been doing this for over a century. After the foundation of Israel a “Basic law” was passed, mandating that the State use public land for this purpose as well. In the 1991 Ka’adan case the Supreme Court struck down this law, though totally without legal authority to do so. It is no longer legal to use land for the purpose of creating Jewish settlements. Note that this applies to all of Israel, not just Judaea, Samaria, or Gaza.

§ Prior to the January 2003 elections the Knesset passed a law forbidding people who advocate the use of armed violence against Israel (as several Arab MKs do) from running for the Knesset. This law was meant to protect the State of Israel from having to harbor advocates of its own destruction in the Knesset. The Supreme Court struck down the law.

Bias is also evident in the Attorney General’s Office and the State Prosecutor’s Office. Several examples are listed on Pages 4-5.

This longstanding pattern of behavior persists because the law, as currently written, gives the Knesset almost no power over appointments to senior legal offices—the courts, the Attorney General, and the State Prosecutor. This situation must be changed.

Judicial Appointments in Israel

The Israel Policy Center’s latest legislative proposal provides for Knesset confirmation of judicial appointments. At present the Knesset exerts no effective influence on the appointment process.

Under present law, all judges in Israel, from the Supreme Court on down, are appointed by the Judicial Appointments Committee, whose authority is established by law.[1]

The Judicial Appointments Committee has, by law,[2] nine members:

· The Chief Justice of the Supreme Court and two other Supreme Court Justices, chosen by the members of the Supreme Court.

· Two lawyers appointed by the directorate of the Israel Bar Association.

· Two Knesset members, traditionally one from the governing coalition and one from the opposition.

· The Minister of Justice and one other minister chosen by the government.

Only four committee members are elected by the people. The lawyers are thoroughly dependent for their livelihood and reputation on the Justices of the Supreme Court; the most prestigious legal role in Israel is to plead cases before the Supreme Court, and nobody wants to hire a lawyer to argue his case whose actions on the Judicial Appointments Committee have alienated the Justices. Such considerations may also influence the directors of the Israel Bar Association, who have a collective interest in sending to the Judicial Appointments Committee lawyers who will not embarrass them with the Justices.

This means, in effect, that the justices appointed to the Judicial Appointments Committee enjoy an automatic majority. It is a very long time since any candidate not approved by the Justices was appointed. In fact, this method means that the composition of the Supreme Court is decided by the justices of the Supreme Court themselves.

It also means that Israel’s governing coalition—no matter which party heads it—never controls the appointment process, even though it represents the political will of the majority. Its representation on the Committee is no greater than one-third: Two ministers and a Knesset member.

By now the majority of Justices on the Supreme Court are colleagues and friends of the Chief Justice, Aharon Barak. The quality of some is excellent, that of others less so, but their unifying characteristic is loyalty to the Chief Justice, whose scholarship and force of character dominate the court, the Appointments Committee, and the entire Israeli judicial system. Dalia Dorner, Dorit Beinish and Natan Englard are outstanding examples.

Traditionally, the role of Chief Justice goes to the senior member of the Court upon the retirement of the previous Chief Justice. Aharon Barak has carefully arranged it so that on his retirement he will be succeeded in his key position by his former student, Dorit Beinish.

The Supreme Court and the entire judicial system has become an ingrown, self-contained body, dependent at no point upon the people’s will, and increasingly alienated from a large number of Israelis.

The Supreme Court and Other Legal Offices

Given the power and insularity of the Supreme Court, it hardly matters what formal powers elected officials have to appoint people to other offices—the Attorney General’s office, the State Prosecution, Ministerial office or other offices to which elected officials supposedly control the power of appointment. Every such appointment can wind up before the Supreme Court, which does not necessarily feel bound in its decisions by either the law or by the demands of consistency. Refer to the Table on P. 3.

Justice for All?

Curious Decisions by the Israeli Supreme Court

During the Tenure of Chief Justice Aharon Barak

Subject	Names of Cases	Case Summary	Decision	Comments
“Sedition”	Ja’abarin	Israeli Arab poet Muhammad Ja’abarin published poems praising terrorists and terrorist acts against Israel.	Ja’abarin acquitted on appeal	These decisions were issued by the same panel of judges, on the same day. Note that Ja’abarin urged on real, live terrorists who had committed attacks and would in the future, while the Israeli Air Force was hardly likely to take orders from Binyamin Kahane.
“Sedition”	Kahane	Kach activist Binyamin Kahane called for the Israeli air force to “bomb Taibe” (an Israeli-Arab town)	Kahane’s conviction upheld
Liberty of the Press	Channel 2 I	Suit against Education Minister, Rabbi Yitzhak Levi, (NRP), for appointing the Governing Board of Israel Channel 2 TV “without proper consultation as mandated by law.”	Court voided Levi’s appointments; Minister Dalia Itzik (Labor) appointed a new Governing Board	Levi had solicited recommendations from a wide range of public bodies in the same manner as his predecessors in office.
	Channel 2 II	Suit against Minister Dalia Itzik (Labor) on identical grounds as the suit against Levi—inadequate consultation.	Dismissed without hearing
	Arutz 7	Suit to void the law passed to make it legal for Arutz 7 to broadcast on Israeli soil.	Law struck down	Court ruled that the legalization of Arutz 7 “served no essential public purpose.”
Settlement of the Land (Within the Green Line)	“Ka’adan,” or “Katzir”	Ka’adan, an Arab, tried to buy a residence in Katzir, a village built on state land leased to the Jewish National Fund (Keren Kayemet) for the purpose of constructing a Jewish community.	Ka’adan’s appeal upheld.	Jewish settlement of the land is the heart of Zionism. A Basic Law: The Land of Israel determines that public land is to be used to settle Jews. The Court struck down constitutional legislation, apparently on no other ground than that it did not sit well with the Justices.
Government’s authority to conduct foreign policy	Orient House	In the week before the 1999 elections, the Netanyahu government ordered Orient House in East Jerusalem closed for illegal activity.	Supreme Court issued a court order suspending the closure, giving as its reason that the closure was ordered for “political reasons.”	The court’s willingness to refrain from interfering with the government’s prerogative to conduct foreign policy depends, it would seem, on the policy being conducted and who is conducting it. (con’t)
Government’s authority to conduct foreign policy	Destruction of the Temple Mount antiquities by the Islamic Waqf	A group of archaeologists appealed to the Court to order the government to halt construction work by the Waqf on the Temple Mount conducted in violation of the Antiquities Law	Appeal rejected on the grounds that the court refuses to interfere with “foreign policy decisions.”
Prime Minister’s right to appoint his advisors	Ehud Yatom, 2001.	Appeal against Prime Minister Sharon’s appointment of Ehud Yatom as his advisor on combating terror.	Court voided the appointment because of Yatom’s involvement in the “Bus 300” affair (in which captured terrorists were secretely done away with).	Yossi Ginnosar was Ehud Yatom’s superior in the GSS during the “Bus 300” affair. It was Ginnosar who ordered Yatom to kill the captured terrorists. At the time of his appointment by Barak, Ginnosar was known to have a conflict of interest because of his extensive business connections with the Palestinian leadership.
Prime Minister’s right to appoint his advisors	Yossi Ginnosar, 2001	Appeal against Prime Minister Ehud Barak’s appointment of Ginnosar as his advisor, and to conduct negotiations with the Palestinians	Appeal dismissed and Ginnosar’s appointment upheld.
Conspiracy to conceal a crime	Margalit Har-Shefi, 1999	Tried for not reporting to the police that Yigal Amir had threatened to kill Yitzhak Rabin.	Convicted and served a six-month jail term.	Har-Shefi testified that she would have turned Amir in, had she thought he was serious. Raviv was a GSS provocateur. Several witnesses testified that Raviv heard Amir say the same things he said to Har-Shefi, and that Raviv taunted Amir for not having the “guts” to carry out his threat
Conspiracy to conceal a crime	Avishai Raviv, 2003	Tried for not reporting to the police that Yigal Amir had threatened to kill Yitzhak Rabin.	Acquitted.

Some Curious Facts about Law Enforcement in Israel:

1. During the 1999 election campaign, Police Deputy Inspector Moshe Mizrahi, head of the wiretapping unit, obtained a warrant to listen in on telephone conversations between Prime Minister Netanyahu and his former office manager, Avigdor Lieberman, on the grounds that Lieberman was suspected of criminal activity. Both Lieberman and Netanyahu were running for office. The warrant was explicitly limited to conversations with suspected criminal content, and forbade the police to listen in on or record “political” conversations. According to Stanislav Yazhemskii, a recording technician in the unit who later resigned and fled to Canada, Mizrahi recorded and took with him hours of conversation on political strategy, etc.

Yazhemskii’s information leaked. Nonetheless, Mizrahi was promoted to Inspector and appointed to head the prestigious Serious Crimes Unit. In 2002, the state prosecutor’s office announced it was opening an investigation against Mizrahi for alleged abuse of his position while head of the Wiretapping Unit. Nonetheless, Mizrahi has not been suspended, and continues to conduct investigations against Likud politicians.

2. In 1997 the Attorney General, Michael ben-Yair, appointed by Yitzhak Rabin, filed tax evasion charges against Ya’akov Ne’eman days after the latter was nominated by Prime Minister Binyamin Netanyahu to be Justice Minister. Ne’eman immediately resigned the post; he was tried, and the case against him dismissed nine months later. Ben-Yair later acknowledged that he knew the charge against Ne’eman was unsubstantiated and that he had pressed charges merely to force Ne’eman to resign in order to defend himself in court.

Some fifty Israeli Knesset members have criminal investigation files open against them in the State Prosecutor’s Office. Suspicions against most of these MKs cannot be very great, because most of these cases are never pursued—and never closed. The files just lie there, and the politicians know they’re there.

About thirty politicians have been prosecuted for corruption in the past ten years, mostly from the right of the political spectrum. Over 90% of these cases have been thrown out of court, but many politicians’ careers have been interrupted while the investigations and trials proceeded.

3. During the 2003 election campaign, a senior prosecutor in the Tel Aviv District prosecutor’s office leaked to the press information about a secret investigation of the Sharon family’s finances. The leak blew open the investigation at a crucial juncture, and of course dragged Sharon’s name and his Likud party into the mud. The prosecutor was apprehended and admitted that the leak was politically motivated.

4. Attorney Yitzhak Hertzog ran several fictitious front organizations which channelled contributions from foreign contributors to Prime Minister Ehud Barak’s election campaign. Campaign finances in Israel are, at least in theory, strictly controlled and foreign funding is categorically forbidden.

When questioned by the police Attorney Herzog invoked his right to remain silent to avoid incriminating himself. Under Israeli law this is considered to prejudice the accused’s presumption of innocence. Nevertheless Attorney Herzog was elected to the Labor Party’s list of candidates in the recent elections and duly elected. Nobody challenged his election. Recently charges against him were dismissed.

Without presuming to comment on the guilt or innocence of Prime Minister Sharon and his sons, currently being investigated for similar offenses, the contrast in the treatment meted out to Barak and Sharon, by the legal system and in the media, is striking.

[2] חוק בתי משפט [משולב, תשמ"ד]