Recordings of the former chairman of the Central Elections Committee, Supreme Court Justice Hanan Meltzer, exposed are deeply disturbing.
In the tapes, Meltzer warmly compliments a left-wing political activist, Attorney Shahar Ben Meir, and divulges that he, in fact, suggested that Ben Meir "petition" the committee last year regarding some election-related issue.
Those familiar with the practices of the Supreme Court are not surprised. There are public petitioners who will be awarded reimbursement of court fees when their petitions are accepted, and sometimes even when their petitions are denied.
Requesting an appeal is also a common practice. Only recently, in a petition seeking to bar Netanyahu from forming a government – a petition which was lacking any legal basis – the judgment concluded with the biblical quote: "To every thing there is a season, and a time to every purpose."
The petitioners, who filed a petition that even in the opinion of the justices was premature and theoretical, were not charged with court fees, and the implication is clear. The judges were clearly inviting the next petitioners so that they could intervene in the coming election results.
It is also no secret that Ben Meir is one of the most active attorneys, and that the symbiosis between him and the judicial activism of the High Court is highly developed. He is a serial petitioner, who himself initiated countless proceedings.
Most of the petitions are rejected or dismissed outright and had the court imposed upon him and his ilk to pay the real cost of the proceedings, the amounts would accrue to millions of shekels a year.
Israel is in fact subsidizing the expensive hobby of Ben Meir, with the active encouragement of Supreme Court judges, who want to produce judicial legislation on various issues.
What the public exchange between attorney Ben Meir and Justice Meltzer did was to expose this bleak reality to the general public. Such a public connection between an incumbent judge and a lawyer who makes frequent appearances before him does, of course, raise ethical questions.
How could any lawyer who had to appear opposite Ben Meir before Justice Meltzer feel he is getting a fair trial when knowing that the two were loyal ideological partners and that they had a well-developed relationship?
The Movement for Governability and Democracy filed a complaint with the ombudsman of the Israeli Judiciary requesting that the conduct of Justice Meltzer exposed by Galei Tzahal radio be examined.
Unfortunately, the initial response by Judge Meltzer himself and the courts administration indicates that they see no problem with such conduct. This is a very worrisome message which damages the public's trust in the entire legal system.
The ethical problems though, with all due respect, are the marginal issue. In his article "The Essence of Judicial Activism", retired Chief Justice Aharon Barak clarified that judicial legislation is legitimate as "it always comes as a by-product of deciding conflict and not as an activity of its own merit."
For years, advocates of judicial activism have been telling the public that the court is "forced" to produce norms and change the legal situation in Israel, because of the public petitions brought before it.
That is a blatant lie.
The Supreme Court, led by former Justices Meir Shamgar and Aharon Barak, breached all restrictions on the right to stand (locus standi) and be Judged, and allowed every petitioner to bring any issue before the High Court of Justice.
No one "forced" the court to act this way, other than the imperialist will of its judges to express a position on any issue and impose their own values on the Israeli public. But the public image was, as Barak wrote, that the Supreme Court is a passive player, responding to challenges thrown at him.
"In the absence of a dispute, the Supreme Court cannot act either," Barak wrote in the same article. Justice Meltzer's handbook seems to indicate that, in the absence of a dispute, attorney Ben Meir should be summoned and thus pave the direct route for the court for the neutralizing of the Knesset and activist judicial legislation.
Why should we, as citizens, go to the polls and elect Knesset members, while the legislative arrangements in Israel are decided with a secret handshake between Ben Meir and Judge Meltzer?
Those who conceived the idea of the separation of powers have made it clear that freedom will not exist if judicial authority is not separated from the legislation.
The inviting of petitions by the court, and the setting of norms on the basis of those invited petitions, are serious threats to the separation of powers and the Israeli democracy. This practice must be stopped.
