Monday July 28, 2014
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28.07.2014
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Zalman Shoval

The High Court of Justice's dilemma

We need to review Israel's judicial system to question the scope of the court's authority.

There are a lot of things in America worth copying, but their system for appointing Supreme Court justices isn't one of them. The president appoints judges, with help from the Senate, and the result is that the nation's top judicial institution is highly politicized.

In this respect, Israel's system for appointing High Court judges is vastly preferable. But there's a catch: In Israel judges are invested with the authority to appoint their successors. But is their judgement devoid of political bias?

The answer is that we need an urgent review of Israel's judicial system. The review must address how appointments are made as well as fundamental questions regarding the scope of the court's authority. The examination should be conducted by independent members of academia, politics, law and the spectrum of religious institutions -- in other words, people from all walks of life who have no vested interest in the process.

It's also important to understand that recent unrestrained attacks on the High Court are counterproductive and liable to impede reforms. Such attacks also serve the interests of elements who oppose the very notion of the rule of law in the state of Israel, without which we have no democracy and no freedom.

Some have proposed that Knesset members appoint judges, since, after all, they are representatives of the people. But this suggestion is problematic as well. Not because "they didn't take any courses to get into the Knesset," as journalist Yair Lapid has quipped; most members of the U.S. Congress lack pertinent academic credentials as well. But because there is a question as to how faithfully Knesset members actually represent the people.

This dilemma is even more serious because most of the issues the High Court hears have life-and-death national and defense repercussions. Neither their professional knowledge nor a sense of public duty (after all, the court is not composed of elected officials) prepares judges for this responsibility.

This is perhaps the crux of the problem: The fact is that we face an enemy that hasn't accepted our existence and that for the most part seeks our destruction, as Pulitzer-prize winning playwright David Mamet writes in his new book "The Secret Knowledge."

All this brings us back to the boycott law passed in the Knesset last week. Without question, reality justifies Israel's taking steps to defend itself against enemies and boycotters. As Mina Tzemach's poll proves, the majority of the public agrees. So the only question is whether the law, as it was passed, is the best counter to aggressive movements seeking to delegitimize Israel. This issue will soon reach the High Court, which, as in the U.S., functions as a court for constitutional matters, with one small difference: we don't have a constitution.

Thus the High Court would do well to address this legal conundrum within the framework of existing Basic Laws. But it must also take current national and public circumstances into account. This may be the court's true test at this hour. Not to nullify the law but to amend it. In other words, return the law to the Knesset in order to spur both the legislature and government to find appropriate solutions to a real problem that can't be swept under the rug.

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