The enactment of the ‘override clause’ is only the beginning – a revolutionary change is needed to restrain the power of the legal establishment * Judaism’s values are not supposed to be legislated by religious coercion, but they must be determined as Basic Laws * The composition of the Judicial Selection Committee must be changed so that it will stop strengthening the tyranny of the minority * If Netanyahu had restrained the Attorney General’s Office, he would not be suffering from their actions against him today * As long as the High Court of Justice rules out Knesset laws – it is essential for the Knesset to maintain the possibility of re-enacting them, without a majority of more than sixty-one
The Importance of Law
The status of law is of the utmost importance, because it is needed to bring the value system which society believes in, into practical actuality in the life of the individual and society. Today in Western countries law expresses a combination of values of utilitarianism with certain values of their cultural heritage and individual human rights. In order to express the values of emunah (faith) and Torah, which are the basis of our national existence, and without which we would have no existence, we are commanded to judge according to the laws of the Torah, as it is written: “And these are the laws you must set before them” (Exodus 21: 1) – and not according to non-Jewish law (Tractate Gittin 88b). The reason for this is that law must express the idea of Divine justice in the life of the people, society, and the individual.
Reform of the Legal Establishment
Over time, more people have come to realize the severe damage the legal establishment causes the vision of the Jewish state, and the actual lives of Jews living in the country. This is because the values that guide it are foreign, and sometimes even contrary, to the values of the Jewish people, its teachings, and its heritage. The recent campaign in the last few weeks – known as ‘hoke ha’hit’ga’brut’, or the ‘override clause’, is based on the ability of the legislative branch to overturn the High Court’s decisions. This is an important, but modest, beginning.
Action is vital in four areas: 1) Completion of Basic Laws that will express the Jewish identity of the state. 2) Changing the composition of the Judicial Selection Committee to reflect the public’s views. 3) Canceling the tyranny of the Legal Advisor’s institution. 4) Regulating the possibility of the Supreme Court or the Constitutional Court in special cases to disqualify laws, and the ability of the Legislative body to re-enact the laws after their disqualification.
In all these areas, it will be necessary to conduct a stubborn struggle against a specific public which possesses status and influence, feels alienated from the Jewish identity of the State of Israel, and to a certain extent, seeks to turn it into a state of all its citizens. This public bases its beliefs and values on the liberal values accepted today in academic circles in the West. In point of fact, however, even within these circles a process of disillusionment exists, and an attempt to understand and redefine the religious and national values, without which the liberal values system remains weak and hollow in face of the challenges and pressures from within and without.
Apparently, the battle will be decided in the next generation in favor of the Jewish vision of the State of Israel. But as always, there lies two paths before us: “If you follow My laws,” the tikkun (improvement) will be done in a positive way; and if not – it will be done through trials and tribulations. The positive way is to delve deeply into the values of truth and goodness according to the guidance of the Torah, until their light shines forth, and many of our adversaries will be persuaded to a great, or to at least a small extent, that these laws are right and proper. The other way is to continue suffering from the heavy-handed judicial system, which repeatedly harms the fabric of life of the Jewish nation returning to its homeland, as exemplified, for example, by the disqualification of the laws for the expulsion of infiltrators, and as a result, due to all the trouble and grief the infiltrators will cause us, we will be forced to get rid of them.
Jewish Values as Basic Laws
The first area that needs to be dealt with is establishing basic laws that will express the Jewish identity of the state. This does not refer to laws of religious coercion which harms the liberty of each and every individual, but rather, laws that express Jewish values in public life, and allow for deep, original, and profound Jewish creativity. It is imperative to emphasize in the most definitive manner that this does not mean religious coercion, because there is nothing more harmful to the realization of the values of the Torah than the assumption that they are intended to suffocate the individual’s freedom and creativity. In the Diaspora, we were primarily concerned with safeguarding Judaism and taking cautionary actions, and therefore the coercive side was more conspicuous. However, when we want to build Jewish life in the State of Israel, we must give each individual’s freedom an extremely respectable place – as a continuation of the freedom of choice God gave to mankind. And it is essential to strive to find a balance between general Jewish identity, and the full rights of the individual.
First off, the ‘Law of Return’ must be set in a Basic Law, and its application should be defined as a person who is indeed a Jew according to halakha, or a descendant of Jews possessing a Jewish identity. Since today it is not a Basic Law, the legal establishment gnaws at it in the name of the values of democracy. Also, a Basic Law determining the value of traditional Torah study as one of the most important values of the spiritual revival of Shivat Tzion (Return to Zion) should also be anchored in law.
In addition, the status of Shabbat must be set in a Basic Law, according to which it must be preserved in all governmental and public frameworks. It is inconceivable that such a central value in the life of our nation can be expressed in temporary agreements, or by municipal by-laws alone. Just as the value of human dignity and liberty is set in a Basic Law and is not based on the good will of any person or community, thus Shabbat should be set in a Basic Law. The preservation of kashrut in state and public institutions must also be set in a Basic Law. The Jewish character of the IDF must also be determined in a Basic Law.
The existing laws relating to personal status in marriage and divorce, according to which family ties or their permissibility are determined by rabbinic law in rabbinical courts as the tradition of Israel, should also receive a high status of Basic Laws. Afterwards, it will be possible to find solutions to individual and personal problems in various regulations, but the personal freedom of various groups of people must not interfere with the State of Israel in anchoring the sanctity of the family in a Basic Law. Without this Basic Law, the legal establishment will continue to erode the values of the Jewish family, and the status of the rabbinic courts.
The Committee Strengthens the Minority
The second area that must be dealt with is changing the composition of the committee for the selection of judges. Currently, the judges of the Supreme Court have a central position in the judges’ selection committee. Any reasonable person knows that the positions of most of the Supreme Court justices fluctuate between the extreme left, and the ordinary left. Through their excess power in the committee they replicate themselves, and thus, against the will of the public, they continue to impose their positions on it. In order to correct the injustice and the resulting legal biases, it is necessary that the Judicial Selection Committee be composed of representatives of elected officials, as is customary in all democratic countries, in varying modes. If the Meretz party receives enough votes to win a representative, it can choose a retired judge, but sitting judges will not be able to participate in the committee in any manner whatsoever – they must concentrate on the judicial profession, and refrain from political pursuits and harmful interference in the work of the legislative branch, which is also responsible for selecting judges.
Super Powers of the Attorney
The third area: the abolition of the tyranny of the Attorney General. Without any legal basis, the Attorney General and his aides exercise supreme authority over decisions, restrictions, and instructions for elected officials, who are the sole representatives of the sovereign – the people themselves. Thus, officials pretend to run the state without being elected to do so, personally fulfilling the verse “a servant who becomes a king.” They were appointed to serve the public and to be loyal to the State of Israel and its laws, and not to impose upon it their will, worldview, and values, contrary to the position of the majority, and its will.
Part of the excessive power of the office of the Attorney General derives from the inferior and corrupt connection between the role of the Attorney General and the role of the Public Prosecutor. Many public figures are confident, or at least fear, that if they dare to challenge the powers that legal advisers usurp for themselves, the legal establishment will find the way to take revenge on them – to bring them to justice, to ruin their public careers, and to harass their private lives in investigations and legal processes lasting for years. This is a method of dictatorial takeover, unparalleled in any democratic country.
Many people are used to quoting Lord Acton who said: “Power – corrupts; absolute power – corrupts absolutely.” Indeed, the legal establishment in general, and the Office of the Attorney General in particular, provide a good example of this.
Netanyahu’s Blame in the Charges against Him
Many people hoped that with the appointment of Attorney General Avichai Mandelblit as Attorney General, the status of the Attorney General’s Office would be curtailed, and his position would be separated. Prime Minister Netanyahu was already about to fulfill this hope, but in the end, withdrew. Perhaps because he was afraid of the vengeful arm of the legal establishment that would haunt him by opening countless old investigations, put him and his wife on trial, and eventually throw him in jail for misdemeanors usually settled outside of court.
In practice, however, when every Attorney General knows that his job will come to a conclusion after a few years, and sets his eyes on the next honorable post – a judge in the Supreme Court – he must take into account the position of the justices on the Supreme Court. This is a structured bribe, which is very difficult to ignore. Today, in the public state of affairs that has been created, if the Attorney General still wants to remain part of the legal establishment he almost has to put Netanyahu on trial. This creates a situation in which Netanyahu himself is to blame for the situation he is in – a problem which the whole country suffers from. The only way to get us out of this mess is that his colleagues in the Likud, and coalition partners in other parties, will force him to act against the legal establishment.
It should be added that as long as the legal establishment is immersed in this deep corruption, it would also be appropriate to establish a law that does not allow an incumbent Prime Minister to be prosecuted, except in cases of particularly serious offenses.
The ‘Override Clause’ – Even by a Simple Majority
Concerning the fourth subject: The passing of the ‘Override Clause’. In all the amendments, there is, of course, also a need to determine that if the Supreme Court has the ability to invalidate laws, then the Knesset has the power to re-enact them. Today, when the Supreme Court is slanted in its positions to the left, it is forbidden to enact the ‘Override Clause’ to require more than sixty-one votes. It is possible that after the Judicial Appointments Committee changes, the composition of the judges changes, and the Basic Laws relating to the identity of the State of Israel as a Jewish state are enacted – it will be possible to establish a constitutional court, which in exceptional cases will be entitled to annul laws, and to re-enact them, a majority of seventy Knesset members would be required. Today, however, it is better not to pass any law, than to pass a law that will require more than sixty-one votes to cancel the High Court’s decision.
This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at: http://revivimen.yhb.org.il