By Zvulun Orlev
Expected and Anticipated
From the time of Aharon Barak, we are continuously being exposed to rulings by the Supreme Court of Israel that greatly upset the nationalistic public in general and the religious people among them in particular. I am referring to rulings on the subject of religion and the state, settlement activity in Yehuda and the Shomron, the army and security, personal rights, giving preference to personal rights and freedom of expression as opposed to national rights, Jewish morality, and faith in the traditions of our fathers. This is in addition to judicial activism and the attitude that “everything is subject to judgement,” which has led to legal interpretation of laws in a way that is different from the original intent of the lawmakers, including the cancelation of various laws.
What follows is a very small number of examples. Religion and the state: Rulings related to the IDF Chief Rabbi and rapid conversions which begin in Israel but are completed hastily abroad; Settlements: The destruction of Amona and similar settlements; The IDF: Prohibiting a routine where enemy civilians are sent to knock on doors of suspected terrorists who are their neighbors; Security: Preventing expulsion of terrorists and their families and preventing keeping hostages from Lebanon in order to help in the attempt to free Ron Arad; Morality: Allowing the broadcast of pornographic material and permitting single-sex couples to adopt a child. I can discuss this last issue based on my personal experience – In the year 2000 I joined with the late Shulamit Aloni to ask the Supreme Court for an injunction against the Council for Cable and Satellite Broadcasts to force them to block the broadcast of the Playboy channel even though it was prohibited by an explicit law. Our plea was rejected on the basis of “freedom of expression.” As a result of another request of mine for an injunction, asking for equal rights for religious education, I made a decision never to turn to the Supreme Court again on such subjects, since the results could reliably be predicted in advance.
Actually, the reactions of the rightist and religious communities to such rulings are also well known in advance. Proposals to change the situation by such tactics as modifying the composition of the committee for choosing judges or the majority needed in the committee to make a decision might indeed make a difference for a short time, as long as the coalition remains in power. But if the regime is replaced the situation will revert to where it was before. And attacks on the Supreme Court decisions by politicians are also to be expected, but they will not bring about any real changes.
We cannot allow this to continue! How can we put a square peg into a round hole? The religious Zionist approach requires us to preserve the strength of the State of Israel, including following the laws and strengthening the national enterprises. There can be no doubt that the Supreme Court should be included in these desires. Any action undermining the court impinges on our existence as a democratic state, and it is an act that threatens to saw off the branch of sovereignty on which we sit.
What can we do? Well, I have an answer: We must establish a Supreme Court for constitutional issues.
Judges for Law and Judges for Legal Principles
Supreme Court judges are chosen for their legal expertise and for the tone of their judgements. They are not chosen based on their political outlook or their way of life and their beliefs. This is very good, in order that both sides of a case will trust that their rulings will be based on justice, with no interference from the world outlook of the judge. However, these judges also serve as the Supreme Court, which also makes rulings based on world outlook – politically left or right, religious or not, faith, and morality. But they were not chosen in a proper way to enable them to fulfill this role!
What we should do is make two separate courts, one a High Court for Appeal and the other a Supreme Court of Justice. The Appeals Court will be chosen as the Supreme Court is chosen now, but they will no longer have the authority to cancel or modify the laws. Instead, a new court will be established which will have all the authority that the Supreme Court has today with respect to judging the constitutionality of laws, including interpreting the laws and repealing them. This is not a novel idea. In most of the existing democracies today there is a constitutional court which is separate from the appeals court. We have been taught, “If somebody tells you that there is wisdom among the other nations, believe it (but if somebody tells you there is Torah among the other nations, do not believe)” [Eicha Rabbati 2:13]. Yitro taught his son-in-law how to organize a justice system. Why shouldn’t we learn today from the other nations how best to organize a High Court for Constitutionality?
The judges of the constitutional court will be chosen by a nominating committee made up of representatives of the public, who will be a majority of the members. They will be appointed by MK’s and the government in proportion to the results of elections for the Knesset. Other members of the committee will be chosen by existing judges and the Israel Bar Association. The minimum criterion for being nominated as a judge on this court will be excellence in matters relating to law / spiritual morality / academic credentials / social experience. In this way, the High Constitutional Court will faithfully represent a cross-section of opinion in the nation, for the glory of the justice system. There are other details that remain to be worked out, but this is the only way to renew the faith of the people in its court system.