Posts tagged: Legal system

Respect for intellect, expertise and rank formed the basis of the legal system, too. Only those that “know” should pick judges and prosecutors, being experts need have no oversight. The Israeli legal system does not allow any non-judicial oversight of the judicial system and does not allow any oversight of the persecutors besides the prosecutors themselves. At the start, the legal system was based on the British legal tradition and incorporated Ottoman law, too. However, the judges and law professors were almost all German origin. From the start it was a mess.

The current Israeli political system is a parliament, the Knesset, that has 120 members voted in either every 5 years or if the government falls. Voters vote for a party list that is determined before the election. There is strict proportional representation with one caveat – a party needs a minimum of 4 seats to get in. That is approximately 3.5% of the vote. All parties that do not pass the minimum threshold get nothing and their votes do not count. Once the final tallies are made one party needs to convince others to join in a coalition that needs to be at least 61 seats.

The legal system consists of a judiciary that is chosen by a committee that includes 3 sitting Supreme Court justices, two members of the Israeli bar association (selected by the head of the bar association), two cabinet members – one of which is the Justice Minister and chairman of the committee and two members of the Knesset who are not minsters, one of whom is in the opposition. Lower court judges need a simple majority of the committee while Supreme Court justices need 7 of the nine members. In practice, this means that the Chief Justice of the Supreme Court (who chooses the other two members from the Court) has veto power over future members of the Supreme Court. In other words, they choose their successors.

There is another anomaly to the justice system and that is the position of Legal Advisor to the Government. This is a position appointed by the government but who serves a set term so that any specific government does not get to choose their advisor. The Legal Advisor can veto any law and any appointment – and can be overruled only by the Supreme Court. The Legal Advisor also is in charge of the prosecution’s office and decides on whom to indict.

This in a nutshell is the Israeli system that has worked as long as there has been a bit of modesty on the part of all involved. Modesty though, not being the top virtue of politicians, judges and lawyers, is in short supply.

I am by nature a conservative. I don’t believe in radical or revolutionary changes but in slow amendments to what needs to be improved. However, the Israeli political and legal systems are so broken that they need radical overhauls.

Here is our (not so) modest proposal for a reformed political and legal system.

The Israeli political system, being Jewish and free ought to be established under the basis of the “covenant”. A covenantal system establishes sovereignty and reciprocity. A covenantal system is between the citizens and God, with sovereignty not in the hands of the unknowable divine but in the very real citizens. This is a religious concept but it is NOT a basis for a theocracy. Rather, it states forthrightly that sovereignty rests in neither the executive branch, nor the legislative branch nor in the judicial branch. The citizens of the country are sovereign since it is their covenant with God and not the State’s rulers and all decision making must make its way back to its citizens. (I would like to give credit to this idea to an old friend Alan Mittleman – who I have lost touch with – and his book The Scepter Shall not Depart from Judah”, although I may not be interpreting his idea as he stated).

Toward this end we would like to propose the following which keeps the Israeli proportional representation intact but adds stability, checks and balances and most importantly, the centrality of the citizen in the decision-making process. We will be working backwards in that we are not proposing a constitution but rather a form of government that can then decide on the rights and responsibilities that the citizens have and that the government has to its sovereign – the covenanted citizens.

Legislative Branch

Israel needs a bi-cameral legislature but not as it is in the U.S or the UK. In our proposal the Lower House would continue to be elected with proportional representation. They will select a government and the Prime Minister will be a member of the Lower House.

Lower House

The Lower House election would be scheduled every four years and the Knesset would elect the government from its own members as it does today. A simple majority would elect a government and a government would fall with a super-majority of 75 (out of 120). Unlike in most parliamentary democracies, in the structure we propose, a parliament that falls mid term would only serve until the original scheduled 4 year date. This would encourage stability, but still allow a change in government.

If a government falls and another is elected by the current Knesset, that government would also serve out the term of the original government. If a government falls and no government can be agreed upon by the current Knesset, elections for the Lower House would be held to serve out the original term only.

Upper House

The upper house will act as an overseer of the Lower House, the government, the bureaucracy and the Judicial branch. While the Lower House will continue with its 120 members, the upper house will have regional representatives. We suggest 30 districts, equalized in population and each with two representatives. Members will serve 4 year terms and be limited to three terms. There will be elections every two years for half the upper house, with each district always voting for one member every two years.

Members of the upper house would not be allowed to serve in the Lower House after their terms are up, but the opposite would be allowed. This will allow experienced legislators from the Lower House to run and sit in the upper house but they would have to give up their ambition to be Prime Minister as only members of the Lower House could hold that position. Members of the Upper House also cannot be government ministers.

The responsibilities of the Upper House will be legislative, constitutional and investigative. They will have to approve all laws from the Lower House with a simple majority and all “basic laws” – or constitutional laws – will originate in the upper house. These will be passed with at least 40 of the 60 members of the upper house and then sent to the Lower House for their approval

The Upper House will also have the responsibility of choosing lower court judges and Supreme Court justices. The former by a simple majority and the latter by at least 40 of the 60 votes. It will also have the power to remove judges with the same super-majority.

The Upper house will also have investigative and subpoena power – which the legislative branch does not now hold. The debate of the non-investigation of October 7 would have been solved statutorily by the Upper House. It will have total independence from the Lower House and therefore can debate issues and lead investigations without the undo influence of government or opposition.

As for checking and balancing the Upper House, we suggest a recall method that can be triggered by the citizens of the region they represent.

The Government/Executive Branch

One of the main problems with the executive branch is its bloat – too many ministries and too many bureaucrats. There needs to be a statutory limit of 10-15 ministries, appointed by the government and approved by the Lower House.

The Executive Branch also needs independence of action and ought to be able to appoint those who will further its policy goals. Senior bureaucratic and legal officials (in the government – not the Judicial branch) should be appointed by the government as a whole with only a special majority in the Upper House of 40 able to veto them. This should be true regarding the government’s Legal Advisor, Chief Prosecutor, Head of the General Staff and the Shabak (Shin Bet) and Mossad as well as Directors General of the various ministries.

The Prime Minister will be the commander in chief of the military and the internal and external intelligence services will report directly to him. The Prime Minister will have the right to fire ministers at will but can only appoint new ones with the approval of the Lower House.

The Judicial Branch and Legal System

There needs to be a delicate balance between the independence of the court and its being answerable to the citizens of the country. The abuse of power that an unsupervised court system is at least as dangerous to a free society as one that is not independent of the political branches. We try to solve that problem by giving the Upper House the power to appoint judges and justices, and if necessary, to remove judges with a supermajority.

Supreme Court justices should be appointed for one 25 year term irrespective of age. The justices should be able to review all laws except those passed by 2/3rds of the Upper and Lower Houses of parliament. In the case of a law passed by more than 2/3rds of both houses then judicial review should not be allowed.

A total reform must be made of the Government Legal Advisor system. They essentially have veto power over all government decisions, discussions and appointments. They also control the prosecution and the Police’s internal affairs unit. Finally, they have no oversight besides when the government challenges their own legal advisor in the Supreme Court. (This reform needs to be substantial but we do not have room for it here).

This is a rough outline, sometimes detailed and sometimes not, of the changes that need to be made after October 7. The idolatrous rule of the experts brings with it hubris that has caused too many disasters – most especially, October 7. The Upper House of the parliament that we propose should balance the will of the people with the rule of the experts by making it answerable primarily to the citizens of the country.

This is not some utopian proposal that will solve all problems, but rather a framework where people can feel confident in the institutions that are supposed to serve them.

The move towards a covenantal government means that respect must flow from leaders to the citizens and authority from the citizens to the government. For most of the last few decades the reform of government in Israel was limited either to direct election of the Prime Minister or an increase in members of the Knesset. The first was tried and failed. The second is just a power grab by the parties so that they can add more friends to the public payroll.

Our suggestion on the other hand, gives the Prime Minister the authority needed to run the country and the citizens with a tool to keep the government, the legal system and the bureaucracy in line.