The Israeli Supreme Court’s battle for power

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Supreme Court of Israel in Jerusalem, Israel (Photo: Chris Hoare - Flickr)

I urge, then, first of all, that petitions, prayers, intercession and thanksgiving be made for all people— for kings and all those in authority, that we may live peaceful and quiet lives in all godliness and holiness. – I Timothy 2:1-2

As believers and supporters of Israel (whether as temporary residents on Earth living in Israel or abroad), we are well aware of the need to pray for the prime minister and the knesset; however, rarely if ever do we hear about the government structure of Israel and specifically the issues concerning the Supreme Court. I am therefore writing to encourage believers to pray for the issues involved, the people involved, and also to provide some information I have gleaned in the past few years that may be helpful to better understand some of the issues.

Jamie Cowen recently wrote some background information concerning the Supreme Court of Israel and the importance of having balance in a government structure to prevent what could become the tyranny of the majority over the minority. Rather than repeat that information, I will only provide a link and then build on that information.

In the US, believers in Yeshua are well aware of the importance of the makeup of the Supreme Court. Whether the Court swings conservative or liberal has much to do with the direction the US will take on issues of religious importance such as abortion and gay marriage. While any court is supposed to be above partisan politics and provide an inherently non-partisan judgement of the law as written, we all know that however this might have been true many years ago, it is no longer true today. Most or all members of the Supreme Court have strong political leanings which results in relatively predictable voting behavior.

Israel also has separate governmental and Rabbinical courts to deal with governmental and religious issues, respectfully. This article will only focus on the Supreme Court (governmental), not the Rabbinical courts.

The governments of Israel and the US were both set up with Supreme Courts to provide a balance of power in government structure; however, there are some major differences between the Court in the US and the Court in Israel. In the US, Court appointments are made by the president and congress. Thus, elected leaders ultimately determine the direction of the Court. Generally speaking, believers know this very well, and will often vote in an election for a political party with an eye on “stacking” the Court – sometimes caring more about potential Court appointees than about the person being elected. In Israel, on the other hand, Court members are appointed and approved by a committee composed of a combination of the justice minister, Knesset member(s), the Court itself, and external non-elected (e.g. university) officials. In fact, the majority of people who determine the makeup of the Court are … hard to believe this … people who were not elected. That’s right. And the reality is that all of the external non-elected officials are politically far to the left, and so are many of the members of the Court who have a say in court nominations. Thus, the Court can and does propagate its ideology, regardless of the current Knesset.

Furthermore, the Supreme Court in Israel can and does strike down any Knesset laws it wants to – not just related to “human rights” but related to any topic they want. This court activism was started by Aharon Barak many years ago, and has been growing with each successive year. For example, several months ago, the Court struck down a gas deal made by the Knesset that would guarantee the gas company enough profit over a 10-year period to remove risk of developing Israel’s gas field because the Court wanted future Knessets to be able to nix the deal. Current leader of the Court Esther Hayut has indicated she is even considering reviewing established laws from the Knesset to strike them down as well – so bad has become the activism of the Court.

Now what do you call an unelected group of people who determine who replaces them in office and who get to decide what can or cannot become a law? That’s called a dictatorship. Israel’s Supreme Court is close to a judicial dictatorship that can negate the results of any election in Israel because it prevents a right-leaning knesset from passing any laws that go against its political ideology.

On top of that, another difference between the Israeli and US Courts are that US Courts require people or organizations affected by a law to bring the case before the Court; however, in Israel, non-governmental organizations (i.e. External organizations financed for the sole purpose of Israel’s destruction) are able to bring cases before the Court with no stake in the outcome (other than their desire to destroy Israel). So, for example, organizations can petition a spot of land in a settlement as belonging to a Palestinian even if there is no specific person who claims that land, and the court can then use that as a basis to force an entire settlement to be destroyed.

It is in the context of the above, that Israel’s right-leaning government is struggling to figure out how to get around the Court from tying the government’s hands. Now a battle is ensuing over whether or not it is acceptable for the Knesset to pass laws that will allow it to ignore the rulings of the Court. On the one hand, the Knesset is justified in being frustrated with the over-reach of the Court and understandably wants to legislate a way to get around it. On the other hand, there is a potential for abuse in the other direction, depending on what gets legislated.

The current justice minister Ayelet Shaked from the Jewish Home Party (conservative Zionist party) has been using the threat of legislating a new method to determine makeup of the court to arm-twist a leftist court to accept some more conservative members [despite the fact that it is questionable if the current government could legislate this change], and she has also been active to try to change the makeup of the court to better reflect a cross-section of Israeli society – overall probably good changes, but still not addressing the root issues of the conflict.

A further pitfall of the current system involves the Supreme Court’s power to appoint the attorney general – the person who ultimately decides whether a ruling prime minister should fall based on a information pointing to criminal activity. This can be read about in a Jerusalem Post article here.

Ultimately, Israel would probably be better off with a system closer to that of the US in which the make-up of the court is determined completely by elected officials and in which Israel adopts a constitution that adequately separates government powers and prevents abuse on both sides.

For the proper changes to take place in the government, it may require that we get members of the supreme court as well as political leaders who care about doing what is right, rather than holding onto power. Let us pray for God to intervene in this situation to both bring down the judicial dictatorship of the Supreme Court in such a way that allows us to maintain a proper system of checks and balances in the government.