No monopoly on wisdom

Supreme Court should not be above any other government institution

Shuki Segev |Published: 06.13.07 , 00:04

Since the '80s, particularly following what has been termed the "constitutional revolution," Supreme Court justices have taken upon themselves vast powers in running the State and its affairs. All the political arm's decisions and rulings – from cabinet decisions to Knesset laws – are subject to judicial review.

Premised on this idea lies the notion that only a rational, theoretical and abstract study by Supreme Court justices can legitimize existing institutions and government decisions. By the power vested in this idea, former Supreme Court President Barak formulated the approach that "everything is subject to judgment," and that anyone has the right to petition the Supreme Court on judicial matters, demanding that existing government decisions and rulings be subjected to the wisdom of judicial review.

Accordingly, decisions are being examined regarding appropriate fortification of Gaza-region communities, the route of the separation fence, targeted assassinations, appointment and termination of ministerial posts and even the disengagement plan – all according to abstract judicial benchmarks of rationality, proportionality and government standards in the broadest sense.

The basis of the judicial reforms proposed by Justice Minister Daniel Friedmann seeks to impose the same idea that guided the Supreme Court in emboldening judicial review. The justice minister's reforms maintain that the judicial system itself should face the trial of wisdom.

Government reforms imposed by the Supreme Court have skipped over the judicial system. For years there has been no comprehensive public discourse on judicial procedures such as: Nullification of laws by the courts, appointment of the Supreme Court president according to seniority, the composition of the panel for appointing justices and its session procedures, the method by which the attorney general is appointed, and other procedures.

Why only one candidate?

Now, all the above is being put to the test of benefit, advantages and rationality for citizens of the State.

Hence, for example, proponents of existing procedures are being required to demonstrate why the committee appointing the attorney general should recommend only one candidate and not three. Could it be that at any given point in time there would only be one appropriate candidate for the lofty post?

Regardless as to what extent this will irk past and present Supreme Court justices, Friedmann's reforms are using the tools of the Supreme Court itself. The reforms call for the judicial system to examine itself by use of the same logical tools used to examine other government institutions, and justify the procedures it employs before the public and its representatives.

The judiciary process that Israeli society is undergoing has led to a situation whereby the Supreme Court has not only turned into the body having the final word, but it actually embodies public wisdom – in which significant parts of the population are placing the political rationale regarding what is right and wrong in the hands of the Supreme Court.

Now, in face of the proposed reforms, citizens and public figures are required to engage in discussions pertaining to the procedures employed in the judicial system itself.

Perhaps this is somewhat disturbing to judges and attorneys who are now being required to justify their actions to others; however, democracy is premised on the notion that there is no man or institution who can claim monopoly over wisdom.