Building A Jewish Democracy

Legislative Drafts

1. Judiciary Reform

Israel suffers from a serious imbalance in the relationship between the branches of government. Israel’s judiciary, the most activist in the democratic world, dominates the elected branches of government, the legislative and the executive. There is no effective constitutional check on the power of Israel’s judiciary. In many democracies the ultimate check on the judicial branch of government is the power of appointing judges, which is retained by the elected branches of government in the overwhelming majority of democracies. This enables the people’s representatives to ensure that no judges with extreme views, including extreme views of their own political prerogatives, are appointed.

In Israel this check is absent. Judges in Israel are appointed by a small committee controlled by the judges of the Supreme Court and their close allies in the Israeli bar. The process is secretive and subject to manipulation and abuse. It has led to the domination of the court by judges with strongly liberal views, at times close to post-Zionism, who have succeeded in alienating large segments of Israel’s population.

The Israel Policy Center has drafted two laws meant to give the Knesset the power to check the judiciary more effectively by changing the appointments process. One requires confirmation of judicial appointments by the Knesset. This would entail the change of Israel’s current “Basic Law: The Judiciary” by a supermajority of 61 out of 120 Knesset members—far less easy than it may sound. The other would not require changes in the Basic Law, and can be passed by ordinary majorities, but would alter the appointments process significantly: Making the process more transparent, making it easier for a variety of legal points of view to be represented on the committee that appoints judges, and requiring judicial candidates to give open testimony before the Knesset before appointment.

Today cases are tried before the Supreme Court by panels of three or more judges. The panels are appointed by the Chief Justice, who thus has considerable influence in determining the outcome of controversial cases. Another legislative proposal would mandate the selection of panels of judges on the Supreme Court by lot, with the exception of one judge in each panel to be appointed by the Chief Justice.

Existing “Basic Law: The Judiciary” (English)

Judicial Appointments Law (Involving a radical change to the system) (Hebrew)

English Abstract

Limited Amendment to Judicial Appointment procedure (Hebrew)

English Abstract

Selection of Judicial Panels by Lot (Hebrew)

English Abstract

2. Reform of the State Prosecution

Oversight of all branches of Israel’s law enforcement authorities—courts, police, the State Prosecution, and of course the General Security Service (GSS, Israel’s domestic secret police)—is inadequate. While in recent years recurring episodes of police brutality and police corruption have focused attention on reforming oversight of police activities, Israel’s State Prosecution is unpoliced and gets away with a great deal. The State Prosecution plays a prominent political role, pursuing right wing politicians, applying the law in a discriminatory fashion against right wing political activists, and using its authority to suppress dissent.

One aspect of the problem is the relationship between the Attorney General and the State Prosecution. Currently, the Attorney General is head of the State Prosecution. While formally s/he is appointed by the government, in practice the Attorney General acts the Supreme Court’s watchdog over government activities. This has led to the charge that politicians who object to the Attorney General’s policies, as Attorney General, are liable to find themselves under indictment by him in his character as head of the State Prosecution. Four of Israel’s last eight sitting Justice Ministers were indicted by their nominal subordinates in the State Prosecution.

IPC’s legislative proposals for reform of the State Prosecution include a law requiring Knesset confirmation of appointments of senior prosecutors and an adaptation of the Anglo-Saxon Grand Jury system to review indictments of politicians and other important indictments. While the Grand Jury system in the United States is staffed by laymen and subject to considerable abuse, our proposal would subject only practicing members of the bar, who have legal training by definition, to jury duty. We have also “adopted” a legislative proposal drafted by Mr Aviad Bakshi, a doctoral student at Bar Ilan Law School, that would divorce the office of the Attorney General from the State Prosecution.

Appointment of Senior Prosecutors (Hebrew)

English Abstract

Review of Major Indictments (Hebrew)

English Abstract

Separating State Prosecution from the Attorney General’s Office (Hebrew)

English Abstract

3. Repealing Laws Used to Suppress Political Dissent

The Israeli legal system’s chief tools for suppressing political protest and dissent, other than abuse of criminal trial procedures, are two sections of the Criminal Code. One section is a Hebrew translation of the British Riot Act of 1716, which allows any petty police officer to criminalize public demonstrations. This Act, unenforced in Britain during the 20th century and repealed in 1973, was used by the British in the last century to suppress native protests in the British colonial system. Israel adopted it from the British Mandatory penal code of 1936. The other section, criminalizing “insulting a civil servant,” is used by the State Prosecution to criminalize public statements and articles criticizing government policy and the civil servants who execute them. It originates in the Ottoman criminal code. IPC’s legislative proposal would eliminate the riot act and limit the application of “insulting a civil servant” to someone who actually abuses a civil servant to his face, or at home, for the purpose of deterring him from doing his job.

Elimination of Criminal Code Clauses Used to Suppress Dissent (Hebrew)

English Abstract