A madly intrusive justice system is one of the most potent threats the country faces. Can it be stopped?
BY MOSHE KOPPEL, MOSAIC DEC. 4 2014
It is no secret that the state of Israel suffers from both external and internal threats to its life as a flourishing democracy. Less well known is that one of the most potent such threats arises from the unlikeliest of quarters: Israel’s own hyperactive justice system.
Let me begin with an anecdote. Even in Israel’s famously contentious environment, it’s startling to see a government minister interrupt a supreme-court hearing to shout that the state attorney representing his own ministry has been sabotaging him—and that he wants to represent himself. But that is exactly what Ehud Olmert, then Israel’s minister of industry, did in the summer of 2003.
The story, in brief, was this: the Israel Lands Authority (ILA), then under the control of Olmert’s ministry, had reached a revenue-sharing deal with a consortium of kibbutzim to rezone and sell state-owned agricultural land under lease to the kibbutzim. A non-governmental organization (NGO) then petitioned the Supreme Court to invalidate the deal on the grounds that the deal “over-compensated” the (predominantly Ashkenazi and presumably privileged) kibbutzim and had thus failed to achieve “distributive justice.” Since “distributive justice” is the sort of policy issue in which most courts, in most countries, are loath to get involved, the ILA thought it had a strong case. So Olmert was stunned when Israel’s attorney general, whose position entails defending state agencies in court, not only refused to defend the ministry—his client—but sent a state attorney to undermine its case.
Olmert’s outrage was his alone; nobody else in Israel was even slightly surprised. Already a decade had passed since Israel’s high court opened its doors to any petitioner on any issue that caught its fancy, at the same time subordinating elected officials to legal bureaucrats ostensibly in place to advise and represent them. In doing so, the judiciary effectively emasculated the executive branch—as it would ultimately emasculate the legislative branch—while empowering a cadre of extremely powerful government lawyers unaccountable to the public.
Here’s how it happened.
Moshe Koppel is a member of the department of computer science at Bar-Ilan University and chairman of the Kohelet Policy Forum in Jerusalem.