Anti-Democratic Proposals Threaten the Powers of Israel's Supreme Court
January 8, 2008
The role of Israel’s Supreme Court as one of the main guardians of Israeli democracy and human rights is seriously threatened. Last week, Justice Minister Professor Daniel Friedmann unveiled his proposed new law to weaken the powers of Israel’s Supreme Court. This is only the first in a series of measures that he intends to introduce to curtail the powers and limit the independence of the country's highest court. "I plan on reducing the power of the Court so that it cannot perform the basic function of restraining the authorities," Professor Friedmann said in an interview to Haaretz before he was appointed Justice Minister just over a year ago.
The Supreme Court building in Jerusalem.
Emeritus Supreme Court Judge Dalia Dorner spoke several months ago about a coalition of opponents who are out to destroy the Supreme Court as she knows it. "There has been a systematic campaign to shame the Supreme Court judges in the mass media using a populist style,” she said. "There are newspapers that defend the courts, but defense from the political system has completely disappeared – they simply want to eradicate the Supreme Court."
In contrast to the U.S., Israel does not have a formal constitution. But Israel’s Supreme Court does fulfill similar functions to its U.S. counterpart. In addition to being the highest court in the country, the High Court of Justice within the Supreme Court rules on matters regarding the legality of decisions by the government, local authorities and other public bodies and can challenge the constitutionality of laws enacted by the Knesset. The Supreme Court can also consider whether a proposed new law contradicts the collection of Basic Knesset Laws, which have been passed to defend the fundamental rights of Israelis and are considered to be chapters in the country’s yet-unfinished constitution.
The Supreme Court also provides a forum for individuals and organizations, often including the NIF family, to seek redress for violations of their basic rights. Petitioning the High Court of Justice has been a central strategy in NIF’s long history of accomplishment on issues of human rights. Leading NIF grantees, often represented by the more than 50 NIF Law Fellows who are graduates of the U.S. Israel Civil Liberties Program, have won numerous precedent-setting verdicts on such topics as the right of women to become IDF pilots, land allocation, torture of civilians, the right of Orthodox Jews to receive kosher food on IDF bases, employment rights, gay rights, the route of the Security Fence and much more.
The Justice Minister’s proposed new law would change the composition of the committee which appoints Supreme Court judges. At present, five of the nine members of the committee are jurists, while only four are politicians. Professor Friedmann proposes increasing the committee to eleven with six political members. At a time of increasing allegations of corruption against politicians, this potential political control of the judiciary looms as a serious threat to the independence and impartiality of the Court.
But adjusting the composition is not the only limitation of the Supreme Court’s powers planned by Professor Friedmann. He intends to raise the threshold of legal standing (the right of a case to be heard), redefining in a more limited way which cases are eligible to be heard by the Supreme Court and prohibiting the Court from considering matters related to security and the character of the State.
Dan Yakir, ACRI's Legal Advisor walking the corridors
of Israel's Supreme Court.
Israel's advocacy organizations see these new measures as a major threat to their work. Dan Yakir, Legal Advisor to flagship NIF grantee the Association for Civil Rights in Israel (ACRI) points out that these changes will have dire ramifications for Israel’s advocacy organizations.
“Broadening legal standing over the past 25 years has enabled public petitioners, and in particular human rights organizations, to bring up for debate in the Supreme Court severe violations of human rights and to request assistance against them,’” said Yakir. “It is not always possible to locate individuals harmed who are prepared to petition the Supreme Court, and if not for broadening the right of standing, many topics would not have come up for general discussion.”
According to Mr. Yakir, the same also applies to the doctrine of eligibility for judgment. In this way, the Court prevents the government from avoiding substantive debates on important topics. The trend of eroding access to the Court is dangerous, he insists, because it reduces the defense of human rights.
NIF expresses support for the Supreme Court some years ago in a counter protest against Orthodox Jews who opposed the Court's powers.
For years there was a consensus between left and right that the Supreme Court fulfilled a vital role in checking the power of politicians. Only the more extreme religious right opposed the Court because of the view that justice was the exclusive domain of rabbis who interpret the Torah and halachah. With Supreme Court judges themselves prohibited from giving media interviews, it is only over the past week that advocacy groups have been joined in their opposition to attempts to weaken the Supreme Court by media and public figures, including the Labor Party, which has condemned the plan.
The New Israel Fund is carefully and attentively monitoring the situation. We stand prepared to play an important role in advocating for the Supreme Court’s independence – and in continuing to fulfill our traditional role in helping preserve and strengthen Israeli democracy.
