The High Court’s unanimous decision last week to disqualify the appointment of Manny Mazuz to the position of Chairman of the Committee for Senior Appointments, is a just and correct decision based on the values of equality and fairness. The attempt by legal advisor Gali Beharev Miara and Mazuz to appoint Mazuz for eight years was rightly rejected by the Supreme Court, which also required the respondents on behalf of the government to pay expenses. However, the existing legal system regarding what is done in the transitional government is far-fetched and leads to absurd results.
The issue itself is regulated in the “Government” basic law, which states in section 30 that the outgoing government will continue to fulfill its duties “until the new government is formed”. According to the law, the existing government, both after it has resigned and after the Knesset has decided on elections, has full powers, and this until the moment when a new government is formed. To Judge Noam Solberg’s credit, he mentioned this provision in the Basic Law at the beginning of the judgment. However, from then on, she no longer remembered the verdict, and lost all meaning.
The Knesset law became irrelevant. His place was taken by a long line of musings voiced by various judges. To this were added instructions from the Attorney General, which the court referred to as legislation found in the Holy Scriptures. No one asked how the legal advisor became a legislator, and who even authorized him to be a legislator. For our purposes, it is enough to state that this is an authority that he simply assumed for himself.
At the time, the Supreme Court ruled, in a wrong ruling and contrary to the Agrant Committee’s position on the matter, that the legal advisor’s opinion is binding on the government. From here, a leap was made that inflated the error by a hundredfold. Even if we assume that an opinion in a specific case is binding, this does not mean that the consultant is authorized to enact provisions in advance that will apply in an unlimited number of cases that will arise in the future. But in the Israeli legal system anything is possible.
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And now something about the sad history of this development. In 1993, the candidacy of Dorit Binish (then the State Attorney) was put forward to the Supreme Court. Supreme President Meir Shamgar objected, and the nomination did not pass. In 1995, during the presidency of Aharon Barak and immediately after the swearing-in to assassinate Rabin – in the days when the government was a transitional government – Binish was appointed to the Supreme. No one thought that there was a problem with the appointment during the transitional government, a fact that did not prevent her from standing at the head of the opposition to the appointments during such a time.
About ten years later, a fierce fight broke out between the Supreme Leader and Justice Minister Tzipi Livni (in her first term in office) regarding the candidacy of Ruth Gavizon for the Supreme Leader. While this struggle was pending, the government became what is known as a “transitional government”, and at the same time a petition was filed with the High Court against Prime Minister Sharon for not approving the assembly of the religious council in Kiryat Ono.
This matter provided Judge Ila Procchia with an opportunity to voice a series of thoughts regarding appointments during an election period, which are in conflict with the Basic Law, the main point of which is that during an election period one may not appoint to public positions, unless there is an essential need to fill the position. All these musings were in the nature of sayings by the way (Obiter). Added to this was the problematic nature of such judicial legislation, while the Supreme Court has a vital interest in preventing Gavizon’s appointment. In short, the problematic judgment was written amid a sharp conflict of interest.
All this is compounded by the fact that the law enacted by the High Court is a bad law in its own right. In general, the High Court is not the appropriate institution for enacting general laws. He does not have the necessary information for this and he also does not have the tools to assess the consequences of such general legislation. In the current case, the High Court of Justice brought not only the matter of appointments, but all the actions of a transitional government, under judicial supervision on a vague basis, examining what are the essential and urgent things that such a government can carry out, compared to less urgent and essential matters.
A reasonable offer
Recently, a Hebrew translation of the book “Noise” was published, authored by Nobel Prize winner Prof. Daniel Kahneman with other authors. At the center of the book – a discussion about failures in judgment and the great disadvantage of exercising discretion (including judicial discretion), compared to the use of clear rules. Using judgment leads to errors, and is characterized by inconsistency. One of the results is that those subject to discretion feel discriminated against when in one case one result is achieved and in a similar case the opposite result.
In the current case, the judicial system replaced a clear rule established by the Knesset in a basic law, with a vague discretion that the judicial system granted itself in a series of non-legal issues. Under these circumstances, the feeling of discrimination by the Likud, which opposes the appointment of a Chief of Staff at this time, is understandable. This is compounded by insensitivity accompanied by arrogance, when in the pre-election period they give a senior official in the judicial system, Meni Mazuz, a position for a period of eight years. One can offer a series of quibbles explaining why exactly This time it is justified, but the feeling is that the judicial system enacts laws for others – while its members and superiors stand above these laws.
The flaws that characterize the High Court of Justice legislation stand out even more in the legal advisor’s legislation. This time it is a decision by one person without a public hearing and without any procedure of public control. It is also characterized by transferring a set of non-legal issues to the consideration of legal advisors, who have no special knowledge of the issues that it is them.
However, this is the method that Mazuz and Rabbi Miara also advocate, and within this method there was no logical possibility to justify the appointment of Mazuz for a period of eight years. At the previous meeting, the Supreme Leader proposed to appoint Mazuz ad hoc for the purpose of examining the appointment of the Chief of Staff. This was a reasonable proposal within the existing system. In response, various commentators explained that if Mazuz is not appointed for eight years, this will delay the appointment of the Chief of Staff. This dubious response, which was repeated in the media even after the verdict was handed down, was first heard as a threat and then as a baseless accusation at the High Court for harming Israel’s vital interest. As I explained in a previous article in this newspaper (“Who’s the Boss”, July 8, 2022), The trial does not cause any difficulty, and there is no reason to postpone the appointment of the Chief of Staff.
In any case, it turns out that the legal advisor did not pass the reasonable proposal of the Government Court at all. No wonder Judge Solberg reacted to this with astonishment: “The whole proposal was between the right lobe and the left lobe of the legal adviser to the government?”. Indeed, the petition to the High Court was first of all against the government, and logic requires that the court’s proposal be brought before it and considered by it. However, it is worth mentioning that according to an erroneous ruling of the High Court, the legal advisor represents the “reasonable government”, not necessarily the existing government.
In short, the legal advisor determines the government’s position. Therefore in our far-fetched method, even if the government was willing to accept the offer, the legal counsel was free to tell the court that she rejected the offer on behalf of the government.
I will end this sad affair on an optimistic note. It is to be hoped that the High Court’s ruling is a landmark in breaking up the unhealthy symbiosis between the legal advisor and the High Court, and perhaps it is one step towards further supervision of the legal advisor and a re-examination of the excessive concentration of power granted to him, a concentration of power that disrupts the administration of the state and does not increase in line with the principles of democracy.