On Sunday, February 22, 2004 and Sunday, February 29, 2004, the Constitution, Law, and Justice Committee met to discuss the Constitution by Broad Consensus. The discussion focused on Basic Law: The Judiciary.
The powers of the High Court of Justice (HCJ)
An historical background: The HCJ derives its powers from section 15 of Basic Law: The Judiciary. The text’s origin is in the British mandate, and was originally designed to grant the High Court of Justice the power to review acts of the executive authority. In time section 15 came to be the basis for the HCJ’s judicial review Knesset Legislation. When does the Supreme Court hear petitions as the High Court of Justice? (Section 15(c)) Section 15(c) of Basic Law: The Judiciary authorizes the Supreme Court to sit as the High Court of Justice and under two conditions:
In cases where the HCJ deems it necessary to grant relief for the sake of justice.
Prof. Barak Erez understands the term “for the sake of justice” to mean that the HCJ may grant a petitioner relief in cases where his or her claim is just, but there is no legal instance to grant him effective and speedy remedy.
The issue does not fall within any other court’s jurisdiction
The judicial policy of the HCJ is that if any other tribunal can offer an effective remedy, the HCJ will reject the petition. The HCJ does this often, at its discretion. Judicial discretion is key The HCJ excercises its discretion regarding petitions via a series of preliminary tests which are part of the substantial administrative law. The court’s role is to provide a shield and remedy to the civilians from the governmental authorities. The Powers of the HCJ – section 15(d) Order of Habeas Corpus – section 15(d)(1) The HCJ is authorized under this section to release persons unlawfully detained or imprisoned (e.g., the authority to issue an order of Habeas Corpus). While in ordinary practice, such claims are usually handled within the framework of regular criminal procedure, this section retains symbolic importance, stressing the role of the HCJ as the safeguard of civil liberties. Judicial review of acts of government – section 15(d)(2) This section of the Basic Law authorizes the HCJ to order state and local authorities and officials, (including other persons carrying out public functions under law), to act or refrain from acting in the lawful exercise of their functions, including if they were improperly elected or appointed. This section reflects the major traditional role of the HCJ; exercising judicial review over the standard operations of the executive branch, when it acts according to its statutory authority. As the High Court of Justice, the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law. It rules on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal (courtesy of the Israel Supreme Court website, www.court.gov.il,">http:\/\/www.court.gov.il\/');">www.court.gov.il, May 2004)
Transfer of powers from the HCJ to Administrative Tribunals The HCJ had often bestowed its power of judicial review to the District Courts to sit as Administrative Tribunals examining certain acts of governmental bodies. This allowed the lower courts to implement administrative law with authority similar to the HCJ’s on matters inappropriate for the Supreme Court to address as first instance (e.g., in building and planning matters). This practice was eventually codified into law, leaving subjects that naturally belong within the jurisdiction of District courts in their proper place rather than immediately delivering them to the HCJ. This legislation also defines a mechanism of appeal on the judicial or semi-judicial decisions of the Administrative Tribunals, which has created a decline in the judicial review of the HCJ over such courts and tribunals formerly based on Article 15(d)(3) (as described in the following paragraph).
Judicial review over courts and tribunals – section 15(d)(3) Sections 15(d)(3) and 15(d)(4) of Basic Law: The Judiciary authorize the HCJ to exercise judicial review over those courts, tribunals, bodies, and persons with judicial or quasi-judicial powers that are not subject to the Supreme Court as an appellate court. This sub-section has fallen into some disuse, since there are alternative procedures of appeal on Administrative Tribunals. However, sub-section 15(d)(3) still enables the Supreme Court sitting as HCJ to maintain judicial review over the decisions and judgments of the Labor Tribunals. Judicial review over religious courts – section 15(d)(4) The HCJ is granted the power of judicial review over the religious courts under certain conditions. Indeed, the language of this section expresses of the special sensitivity with which the religious courts are treated in the Judiciary, and the narrow judicial review of the HCJ over their decisions. The Israeli religious courts enjoy great autonomy and may judge according to their particular religious laws. The special status of the religious courts The cause for HCJ’s intervention in the decisions of the religious courts is narrower than the cause for intervention in the decisions of other judicial tribunals. The HCJ must demonstrate ultra vires of the religious court, i.e. that the court exceeded its authority. Pointing to an error in the religious court’s ruling is insufficient cause for intervention. Is judicial review of religious courts really limited? Dr. Hillel Sommer of the interdisciplinary center in Herzliya claimed that the HCJ deals with substantive decisions of the religious courts in an attempt to , trying to implement the civil laws and norms instead of the religious norms of the religious courts. That was the opinion of Dr. Hillel Sommer from the Interdisciplinary Center Herzliya, who said that the HCJ should refrain from deciding in such matters and restrict itself to cases of ultra vires of the religious courts. In Prof. Barak Erez’s view, while the HCJ has broadened its review of the decisions of religious courts to some extent in recent years, the extent of intervention such decisions still does not rival that of the HCJ over other courts and tribunals, and substantial decisions of the religious courts are usually left alone. (Historical background and analysis on the powers of the HCJ presented to the committee by Prof. Daphne Barak Erez)
The extent of HCJ intervention in government acts and Knesset legislation
The HCJ has a dual function The HCJ is both Israel’s constitutional court and its administrative court. As the constitutional court, it decides questions of public interest and major legal and public importance, in some cases using Judicial review, the power to invalidate Knesset legislation it finds unconstitutional or in contradiction to a Basic Law. As administrative court, it decides upon petitions on issues of public administration, issuing court orders to remedy injustice in governmental bodies. The HCJ demonstrates judicial activism Speakers at the Constitution, Law, and Justice Committee expressed a variety of views on the extent of judicial review exercised bythe Supreme Court sitting as the HCJ of government acts and Knesset legislation. Some thought the Supreme Court interferes overly much in controversial political matters at the heart of public debate. Committee Chairman MK Michael Eitan (Likud) raised the possibility of defining in the constitution the boundaries and limitations on the HCJ’s power to interpret legislation, and wondered whether it would be possible to define certain issues as unjusticiable (beyond the courts’ sphere of activity). The HCJ does not demonstrate judicial activism Some speakers, including Prof. Barak Erez, thought that the HCJ exercises its authority in a restrained and balanced manner. The Court has, in the twelve years since the legislation of the Basic Laws of 1992, invalidated only three Knesset laws and declared a fourth unacceptable. The HCJ reviews other government authorities more frequently, but only in a minority of cases does the HCJ intervene in acts of the executive authority.
Judicial activism or judicial restraint? Dr. Shlomo Cohen, President of the Israel Bar, agreed that the HCJ has shown great judicial restraint and in fact passivity in recent years in comparison with its decisions a few decades ago. In Dr. Cohen’s view, the controversy and public debate of a particular issue should not exempt it from judicial review. Supreme Court power to invalidate Knesset legislation The Committee considered whether to differentiate between the Supreme Court’s authority to review government actions and its authority of judicial review over Knesset legislation, and discussed various approaches to the issue of the Supreme Court’s power to invalidate Knesset legislation. Some committee members suggested granting the Supreme Court power of judicial review only in a special expanded format. Others, including MK Eliezer Cohen (Ha’Ichud Haleumi), recommended establishing a separate Constitutional Court to assume sole powers of judicial review. When the Knesset passes an unconstitutional law The Committee discussed what the consequences should be when the Supreme Court finds that Knesset legislation contradicts a Basic Law or, in the future, the Constitution. Should the Court immediately repeal the legislation? The British model: declaration of incompatibility One suggestion was to adopt a British-style model, whereby the Court has the authority to make a non-binding “declaration of incompatibility,” that is, to declare a piece of legislation incompatible with a Basic Law or with the Constitution. According to this model, the incompatible legislation would then be returned to the Knesset, which reserves the right to decide whether to amend the law according to the Court’s recommendation. Prof. Shimon Shetreet of the Hebrew University and Prof. Zeev Segal from Tel Aviv University supported a British-style model, which might serve to balance power between the legislative and judicial branches and decrease the friction between them. Prof. Ariel Bendor, however, of the University of Haifa, found the British model unsuitable for the Israeli legal system, because of inherent differences between the systems and the fact that the British legal system is subject to judicial review of the European Courts.
Judicial review requires further discussion
Further discussion on the extent of constitutional judicial review over legislation was deferred until the Constitution, Law, and Justice Committee shall deal with the issue of the legislative process.
Should the wording of Article 15 be changed? Two points of view:
Article 15 should remain unchanged
Despite its cumbersome style, some – including former Supreme Court Justice Itzhak Zamir and Hebrew University Professor Claude Klein – found several compelling reasons to retain the section in its current format:
Article 15 has survived nearly untouched for approximately 80 years.
The legal system has come to know the section’s exact meaning and boundaries.
80 years of decisions in the court system have interpreted and based themselves on the nuances of Article 15. Changing the text would undermine the certainty of these decisions.
Defining Supreme Court powers vs. Exercise of those powers
We must, urged both Zamir and Barak Erez, differentiate between the definition of powers that Article 15 grants the Court sitting as the HCJ, and the exercise of those powers through legal interpretation and judicial review.The criticism of the scope of judicial review thus concerns the exercise of discretion on the part of the HCJ, and not the extent of its powers, and therefore does not justify changing the definition in Article 15.
Alternatively, some, including Dr. Hillel Sommer of the Interdisciplinary Center in Herzeliya, and Professor Yedidya Stern of Bar Ilan University Law School claimed that, despite the impossibility of defining the precise boundaries of justiciability in a constitution –
Article 15 should be changed
–in order to clarify both the proper relationship between the HCJ and the religious courts, and the proper boundary for the HCJ in intervening in religious courts’ decisions.
The importance of anchoring the power of the Supreme Court as HCJ in a Constitution
There is, former Justice Itzhak Zamir explained, a great importance to defining the power of the Supreme Court as a Constitutional Court and an Administrative Court in the Constitution. This would strengthen the role of the Supreme Court in setting the boundaries for the executive and legislative authorities and would protect the Court from attempts to narrow its authority by ordinary legislation.
Nomination procedures for judges
The structure of the Judges’ Nominations Committee Section 4 of Basic Law: The Judiciary stipulates that Israel’s judges be appointed by the President of Israel according to the recommendations of the Judges’ Nominations Committee. The committee is composed of 9 members: 1. The Minister of Justice, who chairs the committee; 2. The Chief Justice of the Supreme Court 3, 4. Two Justices of the Supreme Court; 5. One additional minister; 6, 7. Two Members of Knesset;8, 9. Two representatives of the Chamber of Advocates (The Israel Bar). The Supreme Court –unanimous voice or variety of opinions? Doubts were expressed that the current structure of the Judges’ Nominations Committee promises a heterogeneous configuration and a variety of opinions on the Supreme Court. In light of the intensifying participation of the Supreme Court in constitutional questions of an ethical nature, it is perhaps appropriate to consider changing the appointment procedures. The Supreme Court – a unanimous voice MK Eitan expressed the view that the opinions and views of the majority of Supreme Court Justices are nowadays known to be liberal and left wing, and insufficient representation is given to the conservative elements of society. This is manifested by the unanimous stand they take on many issues. In Eitan’s view, this undermines the public faith in the Israeli judiciary, and calls for changes in the nomination procedures. MK Gideon Sa’ar (Likud) agreed, proposing that while the Supreme Court should enjoy powers of judicial review, there should be certain changes in the procedures of nomination of judges, such as performing a hearing of the candidates’ views and opinions. Judges appoint themselves – a problem of separation of powers MK Sa’ar also criticized the current procedure according to which members of the Judiciary themselves are involved in the process of appointing judges. Prof. Ariel Bendor supported this argument, and Prof. Shetreet pointed that judges’ involvement in the nomination procedures compromises the separation of powers. The Supreme Court – a range of voices Former Supreme Court Justice and chairman of the Commission for the Appointment Procedures of Judges Itzhak Zamir rejected the criticism of the cultural and intellectual uniformity of Supreme Court Justices. In Prof. Zamir’s view, there is a wide variety of opinions and viewpoints among the Justices. The Israeli nomination procedures are collectively considered one of the best systems in the world, earning international interest and appreciation.
The advantages of the current system Zamir called the Israeli Judiciary independent and professional, and Israeli judges judge honestly and without prejudice. This is a direct outcome of the nomination system and proof of its success. Prof. Zamir’s position therefore is that the current nomination procedures should not be changed. The representative of the Israel Bar, and Prof. Eli Salzberger of Haifa University agreed, adding that the Israeli nomination procedures are unique in combining representatives from the three authorities with legal professionals into one balanced committee. The Israeli nomination process is highly regarded in other countries, and should remain basically unchanged. Political involvement in judges’ nomination procedures Knesset approval of nominations Dr.Yitzhak Klein of the Israel Policy Center claimed that in many legal systems in which the Supreme Court enjoys the power of judicial review of legislation, Justices are appointed by public representatives and the political establishment. Such a model, he believes, is intended to ensure that the values and the norms of the public are reflected on the bench. He suggested adding to the current nomination system a requirement for Knesset approval of the selected candidates. Concern about political over-involvement Members of the committee, however, expressed their concern regarding the over-involvement of politicians in the appointment process. MK Chaim Oron (Meretz) and Prof. Ariel Bendor expressed the preference that most members of the Judges’ Nominations Committee be professionals without political identification, in order to safeguard the public’s faith in the Nominations Committee. MK Eti Livni (Shinui) thought that the current structure of the Nominations Committee is properly balanced. She considered the idea of adding academics to the Judges’ Nominations Committee. MK Michael Eitan, on the other hand, noted that the appointment of judges by the Nomination Committee inevitably invites political pressure and maneuvers. Special majority in the Nominations Committee Prof. Eli Salzberger suggested that Supreme Court Justices be appointed by a special majority of the Nominations Committee members, to ensure wide consensus on their appointment. The approach of the Israel Bar Dr. Shlomo Cohen and Bar representative Ron Gazit expressed the Bar’s view that the current structure of the Judges’ Nominations Committee should not be changed, and that a special Constitutional Court should not be established. The public faith in the courts is a central issue, and according to polls it is very little eroded in recent years. They attributed this in part to satisfactory current nomination procedures. The voices calling for change in the nomination procedures are really only criticizing the HCJ’s intervention in certain issues, they claimed, and these two separate issues should not be confused. Getting acquainted with the candidates’ identities Members of the Constitution, Law and Justice Committee also discussed their desire for members of the Judges’ Nominations Committee to be better acquainted with the candidates’ positions and views on various ethical issues before they take their seats on the bench. MK Eitan expressed the view that the current nomination procedures do not provide the Nominations Committee with sufficient information on the candidates’ views and values, which are relevant considerations in the nomination process. Legal professionalism as inherently connected with personal identity In the process of nominating judges, Prof. Yedidya Stern suggested, the candidate’s identity should be given particular attention. The importance of the judges’ personal identities stems from two factors – the long terms the judges typically serve before retirement, and the fact that precedents set by judges in higher courts bind the lower courts. The professional decisions of a judge and the way he or she implements his or her faculty of legal interpretation are an integral part of the judge’s personal identity and values. The professionalism of judges is not an objective narrow skill, since legal questions have more than one possible answer. Indeed, a judge chooses from a wide range of legitimate potential decisions based on his or her own identity, life experience, education and personality. In Stern’s view, professionalism and reflectivity are not contradictory terms, but complementary concepts. Prof. Ron Shapira of Tel Aviv University agreed, commenting that a truly professional Court would inherently reflect the social, cultural, ethical, and political variety in Israeli society. The principle of reflectivity The Committee discussed the principle of having the Supreme Court bench and the Judiciary as a whole reflect the society they serve, rather than ensuring representation on the bench by formula. Formulaic representation is acceptable in a parliament or in other elected bodies such as local authorities, but is undesirable in the judicial system.
Should judges be appointed according to representative criteria? In Prof. Stern’s view, taking into account the identity of a candidate does not lead to the conclusion that judges are to be nominated according to representative criteria, i.e. to represent the values of a certain group in society. Nominating a judge who is to represent a certain sector of society, such as a religious judge or an Arab judge, is in theory as well as in practice, unsatisfactory. It may cause the other judges of the bench to consider themselves exempt from the need to weigh the special needs and considerations of that sector, wrongly assuming that they are sufficiently represented by that judge. Appointment according to ideological identity Prof. Stern believes that the different aspects of Israeli society should be reflected in the makeup of the Israeli courts not by appointing sectorial judges but by taking into account the ideological identity of each candidate. In his view, the present structure of the Judges’ Nominations Committee is suitable for such consideration, but in practice, the Committee does not operate in that manner.
The Nomination Committee and the reflective principle Prof. Zamir agreed that the Judges’ Nominations Committee should enhance the reflective principle in Israeli courts. He believes that the Nominations Committee already operates in this manner, preferring from among the suitable candidates those who come from underrepresented sectors, like Israeli Arabs, new immigrants, and Oriental Jews, in order to ensure they reflect (though not necessarily represent) Israeli society. MK Eti Livni expressed the view that the Arab minority in Israel sees the Supreme Court as reflecting their views and that there are signs of a similar trend within the Orthodox Jewish community as well. Prof. Eli Salzberger of Haifa University said that as one of the most reflective courts in the world, the Supreme Court of Israel must reflect the long term interests of underrepresented minority groups, and not simply the views of the majority; the Court is not, after all, an elected body. Prof. Ron Shapira pointed out that there is important symbolic value in appointing a minority Justice to the Supreme Court, particularly an Arab citizen. The Zamir Commission for the Appointment Procedures of Judges Prof. Itzhak Zamir, a former Supreme Court Justice, headed the Commission for the Appointment Procedures of Judges, appointed in April 2001. Prof. Zamir summarized the report for the Constitution, Law, and Justice Committee, discussing ways to improve the appointment procedures of judges. The conclusion of the Zamir Commission was that the current procedure of judges’ nomination should not be changed.
Standing (Locus Standi)
What is the right of standing? Locus standi, the right of standing, is the petitioner’s right to be heard before a court authorized to grant the petitioner relief against an administrative authority. The court decides whether the petitioner has demonstrated sufficient interest in the issue and shown that the issue is personally relevant to him or her, to justify the court dealing with it. No statutory definition of the right of standing The Basic Law: The Judiciary does not currently dictate who has the right to submit a petition to the HCJ concerning an act of government. The HCJ has established these rules of standing by precedent, expanding them gradually over the years. The committee discussed whether the right is overly broad or just right, with voices heard on either side. Current right of standing is overly broad Prof. Shimon Shetreet called the current right of standing for public action overly broad, even by comparison to other systems throughout the world. He claimed that public interest litigation puts too heavy a load on the Supreme Court, at the expense of insufficient resources invested in ordinary criminal and civil cases. He recommended that the right of standing be narrowed and granted only to parties directly affected by the offending legislation. Right of standing should remain broad Prof. Ze’ev Segal disagreed, claiming that allowing public interest litigation is particularly important in cases regarding the rule of law, where government decisions affect the public as a whole. Sometimes, he pointed out, it is impossible to find a particular person uniquely affected by the decision with a right to submit private interest litigation on the matter. Prof. Bendor added that expanding the rules of standing ensures there will be little distance between the language of the law and the Supreme Court’s decisions. He said that restricting the right of standing brings with it the danger that illegal situations will go unchallenged for lack of an appropriate petitioner. MK Livni supported a wide right of standing as well, as a safeguard of the quality of government and minority rights. Limiting the right of standing to human rights organizations The Committee considered the option of restricting public petitions to petitions submitted by human rights organizations, but this suggestion was objected to on the ground that the strength of public actions is in putting important public issues of human rights and the rule of law on the Supreme Court’s agenda.
Basic issues regarding drafting a constitution in Israel
The authority to draft a constitution depends on a broad consensus. Professor Eli Salzberger, Vice-Dean of the University of Haifa Law School, opened the meeting by describing his stance on Israel adopting a constitution. Essentially, he explained, the Knesset lacks the authority to establish a constitution. A body external to the Knesset or the entire nation by referendum must pass the constitution by broad consensus. The involvement of the Supreme Court as a balancing influence in the separation of powers Prof. Salzberger expressed the opinion that the activity and involvement of the Supreme Court serves as a balancing and restraining influence on the other branches of government. This influence derives from the unique power relations and separations among the three branches of government in Israel. The Israeli parliament is unicameral with significant influence on the government, and Israel is a non-federal system and belongs to no super-national frameworks such as the European Union. All this means that there is no inherent restraining balance within the parliament or between the parliament and the executive.
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