Justice Minister Friedmann’s efforts at reforming the Supreme Court are not the usual bureaucratic squabble but the most important political shift since the right-wing Likud came to power in 1977. Having lost their decades-long monopoly on power, leftists activated the back-channel control over Israel: the court and police system. During the MAPAI Party rule, only hardcore leftists where admitted to the middle and top ranks of law enforcement. Despite repeated defeats in the Knesset elections, leftists continued to rule the country through law enforcement and media.
Imagine a situation when a right-wing prime minister wants to reshuffle police’s top ranks. He cannot bring precinct-level policemen to head the entire system and has to fish from the top or middle ranks – exclusively staffed by leftists. Whenever he manages to bring in a person of moderately right views, the leftist bureaucracy shuts out the appointee. Whatever meager changes are introduced, an occasional leftist Minister of the Interior wipes them out. Thus the leftist dominance of police is perpetuated.
The courts are even more closed to change. Incredibly, Israeli Supreme Court appoints its own members. The Roman system of checks and balances, which underlies every civilized state today, postulates that each branch of government checks another’s power. The court sits on top of parliament and government as it can annul their decisions and effectively prescribe the course of new decisions by laying down its case opinion. Government and legislature know that court will annul their acts which don’t comply with its opinions, and refrain from enacting such contrarian acts. The only way for the other branches of government – essentially, for the people – to control the court is through appointments. That’s why it is critical for any functioning democracy that legislature appoints justices.
Ideally, the court should be legislatively banned from interpreting laws and, especially, vague moral values. The only reason for striking down a government’s act should be its explicit contradiction to another law. The sweeping power of interpreting laws rather than simply reading them opens the road to judicial abuse. The difference between reading and interpreting is itself a matter of judicial discretion but at least not as great as the courts enjoy now.
It makes sense to submit judges for prosecution by Knesset. Special investigative committee should be able if not imprison, then at least impeach judges found guilty of activism. The Supreme Court micromanages the separation barrier’s route with no legal ground whatsoever, just on the judges’ hunch of morality. Just like for any state officials who grossly exceed their power limits, such behavior should land the Supreme Court judges in jail.
