Building A Jewish Democracy

Israel Liberty Monitor

Volume III Issue 3 1 Tamuz 5768 / july 4, 2008

Significant Constitutional Legislation Appears Ensured of Passage

 

Amendment Giving Government Veto Over Supreme Court Appointments Passes First Reading

A private bill sponsored by MK Gideon Saar, chairman of the Likud faction in the Knesset and one of the house’s most skilled parliamentarians, passed its first reading on Tuesday, June 24th. The bill provides that appointments to the Supreme Court require a majority of seven out of nine members of the Judicial Appointments Committee. If the bill becomes law, it will give the government a veto over appointments to Israel’s highest court, the most significant change in the balance of power between the branches of Israel’s government since the current system of judicial appointments was put in place in 1953.

According to Israel’s Basic Law: The Judiciary, judges in Israel are appointed by the Judicial Appointments Committee. The committee consists of the Chief Justice of the Supreme Court, two other Supreme Court justices, two members of the governing council of the Israel Bar Association, two government ministers and two Knesset members. Changing the composition of the committee or vesting the power of appointment in some other body (for example, the Justice Minister and/or the Knesset) would require a majority of 61 Knesset members and is widely regarded as impossible under the current government.

Traditionally (and, it should be noted, illegally) the judges on the committee coordinate their positions and vote as a bloc. The representatives of the Bar usually vote with the judges; they or their partners, after all, regularly have to appear before the Supreme Court. In this manner the current appointment system allows the Supreme Court to dominate the entire judiciary, as well as choose their own colleagues. This has tended in the past to produce a judiciary uniform in its judicial views as well as its political bias. Since this bias tends toward the left, the Labor Party is committed to preventing the emendation of the Basic Law. The coalition agreement gives Labor a veto over amendments to Basic Laws.

Of the two Knesset members on the committee, one is traditionally a representative of the ruling coalition and one of the opposition. When the Left is in power, this means the Right gets only one member (out of nine) on the Committee. Even a government not in sympathy with the Supreme Court gets only three out of nine members on the committee.

Voting procedures within the Committee, however, are not defined in the Basic Law and can be determined by ordinary legislation. Such legislation can be passed by a simple majority, and within the present government Labor has no veto over it.

MK Saar’s law, which requires a majority of seven to appoint Supreme Court judges, effectively requires the consent of the government of the day to Supreme Court appointments. This provides a wedge through which, eventually, the Knesset and the government could influence the composition of the Supreme Court — and the balance of power on the Judicial Appointments Committee itself. The bill would enable the government to veto candidates it finds objectionable and, through logrolling, to get some of the candidates it prefers onto the court. It does not enable the government to impose its candidates over the sitting Supreme Court justices’ objections.

The bill passed through the cooperation of the Kadima party, the largest coalition party, and the right-wing opposition, leaving Labor out in the cold. The bill passed an initial “preliminary reading” on the Knesset floor, passed the Constitution and Law Committee, and was sent back to the Knesset plenum for an official first reading. All this took place in record time — in the three weeks since the opening of the current Knesset session. At this rate the bill could pass all legislative stages and become law by the end of July, when the Knesset breaks up for the summer.

In hearings before the committee, Prof. Robert Aumann, Nobel laureate in economics, gave testimony. Analyzing voting in the Judicial Appointments Committee from a game-theoretical perspective (Aumann won his prize for his contributions to game theory), Aumann demonstrated that the Supreme Court judges’ ability to vote as a bloc effectively gave them 45% of the voting power on the committee, rather than a third. Aumann’s leading opponent among the witnesses, Israel Bar Association chairman Yuri Gai-Ron, seemed rather over his head and could make no effective counter-argument to Aumann’s presentation.

It is noteworthy that the current President of the Supreme Court, Dorrit Beinish, chose not to express an opinion on the law, which patently contradicts the interest and diminishes the power of the Court. Beinish may have calculated that, given the substantial majority the bill enjoys, her vocal opposition would do the court more harm than good and serve to solidify rather than weaken support for the bill.

The impending passage of the bill shows how far the public position of the Judiciary has eroded in the past several years. There appears to be no reservoir of public sympathy that the Court can count on mobilizing to preserve its power and position according to current law.

Draft Legislation that Deserves to Fail by Moshe Koppel

 

Two draft laws that recently passed a first reading in the Knesset are illustrations of how good intentions on the part of short-sighted legislators can lead to bad law, if not catastrophe.

The more benign of the two is a law proposed by MK Gideon Saar of Likud. It requires a majority of 80 MKs for ratification of an agreement ceding Israeli sovereignty on the Golan. While the intention of such legislation is entirely agreeable, the foolishness lies in the fact that the law itself can be, and almost certainly will be passed with the support of far fewer than 80 MKs. The theoretical possibility of a small number of MKs requiring a large number of MKs for some legislative purpose just makes no sense.

It's also futile. Consider the current example: the law requiring 80 MKs to vote for ceding the Golan is ordinary legislation. If defined as a Basic Law, it requires 61 MKs to pass or to repeal it. If any government, supported by the Knesset decides to return the Golan, the support of 80 MKs will, in any event, not actually be required.

Such legislative shenanigans should not be tolerated simply for some short-term political advantage. In the end they will come back to bite us.

The less benign draft law requires an indicted Prime Minister to resign. To appreciate the imprudence of such a law, consider the current law, apparently passed when cooler heads prevailed. A Prime Minister is only forced to resign when 1) he has been convicted of a crime with moral turpitude AND 2) all appeals have been exhausted AND 3) 61 MKs have voted to depose him. (Note that 61 MKs are always sufficient to replace a Prime Minister, provided that they agree on a replacement. In case of conviction, only the requirement for an agreed replacement is waived.) The reason for all these requirements is simply separation of powers. We don't want the courts to depose a Prime Minister. That is the job of the legislature.

The current proposal would waive ALL three requirements. In fact, any Attorney General could depose a prime Minister at will just by cooking up an indictment. Effectively, this would mean that every Prime Minister would be held hostage by his Attorney General, who could simply raise an eyebrow to get a wayward Prime Minister to fall into line. And since Attorney Generals, though theoretically servants of the government, are in fact servants of the Supreme Court, this would only further exacerbate the existing imbalance of power in favor of the judicial branch. It is no wonder that the Court's friends on the left support this legislation, but it is hard to fathom the depth of short-sightedness required for those on the right to support this law, just because its ostensible proximate target is Ehud Olmert.

There is a common thread connecting the above two pieces of silly legislation. In each case, the Knesset does not trust itself to act wisely and honorably in some future instance and hence wishes now to tie its own hands. While each proposed remedy is ineffective, one can hardly argue with the diagnosis.

Israel’s Legal System and Corruption: White Knight or Black? by Yitzhak Klein

 

The Olmert government has acquired a reputation as one of the most overtly corrupt in Israel’s history. A former Finance Minister is on trial for peculation. A former Justice Minister was convicted of sexual harassment (but, in an odd ruling, not of felonious conduct). The head of the Knesset Foreign Affairs and Security Committee is on trial for making illegal appointments when a Cabinet minister. To crown it all, Morris Talansky has testified to handing the Prime Minister envelopes of cash.

At the same time, the Olmert government has mounted one of the most sustained attacks ever on the authority of the legal system. Originally, Olmert appointed Haim Ramon, a man with a reputation as a political hatchet man, as Justice Minister with a brief to reform the Ministry (Ramon is the man who was accused of sexual harassment).In his place came Professor Daniel Friedmann, who has proposed much legislation designed to curb the court’s power and authority.

The multiple indictments leveled at persons in the Olmert government (notably excepting, so far, Ehud Olmert himself) have allowed representatives of Israel’s legal establishment, notably the current and former Chief Justices, Dorrit Beinish and Aharon Barak, and the Attorney General, Menahem Mazuz, to defend the power of that establishment by portraying it as the last bulwark of Israel’s democracy against corruption. According to this narrative, Daniel Friedmann, honest but misguided, is Ehud Olmert’s agent in a conspiracy to render the courts contemptible and the laws unenforceable in Israel.

This argument cannot be accepted at face value. It implies that Israel’s legal system merits public support because it has been a consistent combatant against corruption. This, unfortunately, is a misrepresentation. Israel’s legal system operates with significant political bias. Whether a politician gets indicted depends more on who his friends are and what his declared policies are than on anything he has done. This has especially been the case since the appointment of Menahem Mazuz as Attorney General, a weak man with flawed judgment which he has exercised too often in the interests of his friends and his personal political convictions.

Menahem Mazuz’ Record

Mazuz was originally appointed to office under Ariel Sharon, while the latter was under investigation for various alleged acts of corruption, on the strength of an article he published alleging that a prosecutor should not indict a senior politician unless the case against him was open-and-shut. Mazuz duly refused to indict Sharon, leading the Austrian justice minister (some of the evidence against Sharon had been obtained from Austria) to remark that corruption laws were enforced rather differently in Israel than in his own country (itself not known for Teutonic fanaticism for clean government). Sharon’s son, Omri, took the rap for his father and has just completed a four-month prison sentence. 

Soon after Mazuz’ appointment Atty. Yehezkel Beinish, husband of the Chief Justice of the Supreme Court and chairman of the board of the Jerusalem Symphony Orchestra, was investigated for authorizing the nonpayment of payroll tax for the symphony’s employees. In an astounding ruling, overturning years of precedent, Mazuz ruled that Beinish’s actions were not criminal. Since then failure to pay payroll taxes has become a serious public problem.

Mazuz next bungled the indictment of former President Moshe Katzav. On the strength of the testimony of Katzav’s accusers, Mazuz told the press that Katzav would be indicted for rape. Later, when Katzav’s lawyers presented him with evidence that relations between Katzav and his accusers had been consensual, Mazuz had to agree to a much more lenient plea bargain. His decision was appealed to the Supreme Court, which upheld it.

Despite his past record, Mazuz exhibited no hesitation in indicting Justice Minister Haim Ramon for kissing a female officer stationed in the Prime Minister’s office. In Ramon’s trial it emerged that police and prosecutors had engaged in gross improprieties and violated Ramon’s due-process rights. Mazuz refuses to punish the prosecutors and police responsible. When the government responded to Mazuz’ refusal by appointing an official committee of inquiry, the past and present Chief Justices defended Mazuz in public, claiming that the criminals were investigating the cops. Neither chose to treat the violation of an elected official’s rights by an interested Justice Ministry bureaucracy as a threat to democratic government.

Last year it was revealed that President Shimon Peres received $320,000 in illegal gifts. Eight years ago the then-incumbent President, Ezer Weizmann, was forced to resign over a similar offense. For Peres, however, Mazuz devised a singular ruling: The money had been given to Peres in his character as a symbol of peace and not in his character as a politician. In effect, Mazuz destroyed the law prohibiting gifts to politicians. For this reason it is not anticipated that Mazuz will indict Ehud Olmert for receiving illegal gifts; after all, Olmert has the Peres precedent to fall back upon.
 
Several of Mazuz’ rulings were appealed to the Supreme Court but no appellant against one of Mazuz’ “political” decisions received succor from the Court. In some of the most blatant cases of political bias, that of Yehezkel Beinish and that regarding Shimon Peres, it was clear that there was no point in attempting to appeal Mazuz’ decisions to the Beinish court.

Black Pots and Kettles

The sad facts are that Israel’s legal system is unworthy of the public confidence it claims. Too many of its decisions bend the law in favor of its political and personal biases. It is simply the case that, as the legal system is empowered to interpret and apply the law, there is nobody in Israel with the power to check or balance its prerogative and denounce politically motivated misapplications of the law for what they are.

In Israeli public life, personal and institutional interests as well as political bias have long ridden roughshod over the objective, impersonal application of the law. That is as true of the appointed bureaucracy of legal officials in the judiciary and state prosecution as it is in the murky world of electoral politics. It represents a deep-seated failure of public morals. The current bickering between elected and appointed abusers of the law only serves to underline the deep-seated need for moral reform of public life in Israel

Attorney General Mazuz Publishes Objections to Citizenship Law

 

Jerusalem, June 29 — Attorney General Menahem Mazuz took the unusual step of publishing his objections to Justice Minister Friedmann’s draft law that would make legislation regarding citizenship and entry into Israel immune to judicial review.

As Attorney General, Mazuz is a civil servant subordinate to the Justice Minister. While it is his right to present his comments on proposed legislation to the government, his choosing to publish his harsh critique of the law would appear to be a breach of the civil service’s disciplinary code, which forbids civil service to criticize publicly the policies of their elected masters. However the government cannot, at this juncture, take disciplinary measures against Mazuz, who is charged with the investigation of Prime Minister Olmert’s alleged crimes and would be responsible for indicting him if he is charged. Replacing or disciplining Mazuz would inevitably bring charges that the government was taking action against him to prevent justice being done in Olmert’s case.

At issue is legislation preventing Palestinians who marry Israelis from entering Israel and acquiring citizenship. While this legislation is necessary for security reasons — a number of such “spouses” have turned out to be terrorists in the past — the Supreme Court is liable to overturn the legislation as a breach of civil rights. Justice Minister Friedmann proposed new legislation, which would make it impossible for the Supreme Court to strike down legislation concerning citizenship and entry into Israel. Friedmann’s new legislation would have to have constitutional status — essentially, it amends Israel’s “Basic Law: Human Dignity and Liberty” — and pass by a majority of 61 Knesset members. 
 

Knesset Passes “Shai Daromi Law”

 

Tuesday, June 24 — The Knesset passed the “Shai Daromi Law” on its second and third readings, completing the legislative process. The law is now on the books.

Our last issue of Liberty Monitor reported that the law had been passed in the Knesset Constitution and Law Committee and was ready for final vote.

The law determines that deadly force may be used against intruders into a person’s home or property without rendering the homeowner liable to prosecution.

The law was passed in response to the Shai Daromi case. Daromi, a Jewish rancher in the Negev, shot at two Bedouin breaking into his ranch to steal livestock, killing one and wounding the other. Like other Jewish farmers in the area, Daromi suffered repeated break-ins and thefts from burglars who frequently bore arms. The State Prosecution indicted Daromi for manslaughter. With the passage of the “Shai Daromi Law” the case against Daromi is expected to be dismissed.

The Daromi affair has nationalist overtones, due to widespread perceptions that Beduin in the Negev, in addition to engaging in widespread illegal seizures of public land, are victimizing Jewish farmers. The indictment of Daromi was widely perceived as signaling that Jewish farmers could expect the State Prosecution to be hostile to their attempts to defend themselves and their property. The Daromi law is aimed as much at the policy of the State Prosecution as at intruders and housebreakers..
 

Government to Investigate Police and State Prosecution’s Conduct in Ramon Probe

 

Israel’s government voted June 17 to set up an official commission of inquiry to probe improprieties in the investigation of Minister Haim Ramon, who was tried for sexual harassment. During Ramon’s trial grave violations of his due process rights by police, prosecutors and judges were inadvertently revealed in court.

Appointment of the committee, which has the power to subpoena witnesses and prescribe disciplinary measures, followed Attorney General Mazuz’s refusal to discipline the individuals responsible for violating Ramon’s due-process rights. Appointment of the commission was met by criticism on the part of the Attorney general, the Chief of Police, and the present and former Chief Justices of the Supreme Court.

See the full story on the Israel Policy Center’s website. The government’s action was supported by IPC.
 

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