Legal expert Professor Eugene Kontorovich, who has championed many of Israel’s controversial judicial reform proposals, told Breitbart News in an exclusive interview on Sunday that it is time to reverse the “power grab” through which judges seized sweeping authority in the 1990s.
Kontorovich, who is director of International Law at the Jerusalem-based Kohelet Policy Forum, which has advocated judicial reform in Israel for a decade, pointed to the judicial revolution led by then-Supreme Court president Aharon Barak in the mid-1990s.
“To claim that what Aharon Barak did by himself with no authorization in 1995 cannot now be undone without undermining Israeli democracy is absurd,” Kontorovich said.
The “Barak Court” assumed the power to overturn legislation and to review administrative decisions. Moreover, an “independent” committee handpicks justices, with elected leaders playing only a minor role.
Kontorovich has called for the Israeli judiciary to reflect the U.S. system, in which candidates for the Supreme Court are nominated by the president and voted for by the Senate.
Barak also introduced the term “reasonableness” to Israeli jurisprudence. The term, critics say, has become a legal pretzel with pliable definitions that change according to the whims of High Court justices. For example, the court ruled it “unreasonable” to allow religious Jews to pray on the Temple Mount – Judaism’s holiest site – because doing so would anger the Arab world.
Kontorovich argues that Israel is the only country where the Supreme Court has control over every aspect of life. New reforms proposed by Minister of Justice Yariv Levin, who serves in Prime Minister Benjamin Netanyahu’s government, aim to rebalance that judicial power with legislative power, he says.
There is stiff opposition. On Saturday night, some 80,000 people came out in Tel Aviv to protest the government reforms, egged on by left-wing political leaders calling the democratically elected government “illegitimate,” and accusing it of carrying out a “coup.”
Kontorovich disagrees vehemently: “To say that the basic features of the Israeli legal system cannot be designed by the people’s representatives is outrageous,” Kontorovich told Breitbart.
Other critics of the proposed reforms, such as Harvard Law professor emeritus Alan Dershowitz, disagree with the proposals but have also defended Israel against the claim that it would not longer be a democracy if the reforms were implemented: many other democracies have similar judicial structures.
Dershowitz has claimed that Israel’s current system “is much better than the American system,” which he calls “overtly political.”
While Dershowitz stopped short of echoing claims by leaders of the opposition that the proposed reforms threaten Israel’s democracy, he said they would threaten liberties and civil rights in addition to making it harder to defend Israel in international courts.
Kontorovich said Dershowitz, who he hailed as a “venerable lawyer,” was wrong on both counts. Israel’s assertive judiciary has never been able to stop either the International Criminal Court the International Court of Justice from passing anti-Israel rulings, he said. On the second point, “minorities currently have no protection from the Supreme Court,” Kontorovich said.
“The Supreme Court can decide to be hostile to minorities as it has time and again and there’s simply no recourse,” he said, pointing to court decisions against Jewish settlers in the West Bank as well as rulings against Israel’s ultra-Orthodox community.
“The current system has judges striking down law with no recourse because they’re simply unreasonable,” he said.
Another of Yariv’s proposals that has been criticized by Dershowitz and the left-wing opposition is the Override Clause, which would allow the Knesset to re-legislate laws that the Supreme Court had struck down, pending a simple 61-seat majority (out of 120).
According to Kontorovich, a 61-seat majority is harder to achieve than a supermajority would be in the U.S.
“61 is not a narrow majority, getting 61 votes is very hard to do and the past 5 years prove that — no government has had 61 votes for anything,” Kontorovich said. “Almost all legislation passes with less than 61, even Basic Laws.”
He went on to explain that Israel’s separation of powers is manifest in its multiparty system. “In the U.S., when one party controls both houses and the president, which is close to half the time, that [party is] unstoppable and extremely powerful, but you don’t see special rules in that case, [there is not] suddenly a different way of picking Supreme Court justices just to make it not completely political,” he said.
In Israel every government, even a strong government like Netanyahu’s, is composed of six or seven parties and getting everyone on the same page – especially for controversial bills – in the face of the Supreme Court and huge international pressure is extremely difficult, Kontorovich explained.
Further, the Supreme Court “simply has the Knesset outgunned.”
Israel’s Supreme Court decides around 12,000 cases every year. By way of comparison, the U.S. Supreme Court averages about 80 cases per year.
“All the Supreme Court needs to do is say ‘illegal,’ and [the legislation is] struck down – they don’t even need to issue an opinion,” he said, pointing to a recent example with the controversial Lebanon gas deal, in which the court has still not written an opinion.
In contrast, the Knesset has to write a law and pass it through three readings.
“The Knesset doesn’t stand a chance. It can’t keep up. You can’t get readings of a contentious bill 12,000 times or even three times a year, so the Supreme Court will keep striking them down,” Kontorovich said.
“The Israeli Supreme Court controls every aspect of life. The question is, how can they hear evidence of 12,000 cases ? When they exercise their powers and stop the government [from passing legislation], they don’t need evidence, they just decide,” he said.
“No facts, no discovery. No one ever knows what the truth is,” he concluded.
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