Michael B. Mukasey
WSJ, Feb. 26, 2023
“in view of the court’s sweeping self-imposed authority, it is difficult at times to describe the current condition as the rule of law.”
Judges and attorneys general throughout the world—I’ve served in both capacities in the U.S.—wield substantial authority. In any sound legal system, such authority is subject to clear, objective limits. That seemingly unexceptional principle might help clarify the debate roiling Israel over the country’s Supreme Court justices and attorney general, and Prime Minister Benjamin Netanyahu’s proposals to change that authority and the method of selecting justices.
Unlike the U.S., Israel doesn’t have a constitution to constrain court rulings. It doesn’t require that a party bringing a case have standing—a direct and personal stake in the outcome of the dispute. In Israel, anyone may file a case on any issue, which raises the ante in the current debate. Nor do Israeli courts recognize the distinction between legal issues—resolved in the U.S. by courts—and policy issues, including military tactics and cabinet appointments, which in the U.S. are left to the political branches.
Moreover, Israel’s Supreme Court has taken on the authority to base its decisions on whatever it determines is “reasonable.” The court has applied even that tenuous standard inconsistently. In 1999, when Prime Minister Netanyahu tried to close the Palestine Liberation Organization’s headquarters in Jerusalem, the court held that the step was unreasonable because parliamentary elections were only months away. But five days before the 2022 parliamentary elections, the court sustained the power of Prime Minister Yair Lapid’s government to enter into an agreement yielding portions of what were claimed to be Israel’s territorial waters to Lebanon.
The Supreme Court’s authority often is exercised in tandem with that of Israel’s attorney general, who serves a six-year term and isn’t part of the elected government. Since 2000, the attorney general’s role as legal adviser to the government has expanded into legal authority over the government. Israel’s courts treat any directive by the attorney general as legally binding on the government. Initially by attorney general directive in 2002, and later by order of the government in 2009, the attorney general has the authority to control the legal advisers within each ministry and government office. In addition, the attorney general may appear in court to argue against the government’s position and can ban the government from seeking private counsel to defend its policies. In such cases, the government’s own lawyer in effect denies it representation. … [To read the full article, click here]