Amid discussion of the conflict of interest inherent in the attorney general's duties, a more critical tension point in the judicial system is often forgotton: The tension between the dual roles of the Supreme Court. It is the highest court of appeals, but under its dual role as the High Court of Justice, the arbiter of some of the most controversial issues.
The Benizri affair illustrates the problematic nature of these dual roles. The case highlighted the fact that the justices' supposed ideological bias influences faith in their rulings on appeals. From this point, an overall loss of confidence in the judicial system is not too distant.
This tension joins a fundamental question over the justices' judicial qualifications and suitability, particularly regarding their ethical and moral responsibilities on the High Court bench. It has long been clear that this is not a case of dry interpretation of the law. These legal interpretations are made in accordance with the justices' principles or understanding of law built on "the values of the State of Israel as a Jewish and democratic state."
These two problems create the need to separate these dual functions of the Supreme Court: its role as the supreme appellate court, which will attract Israel's best and brightest jurists; and its ethical and moral role as the High Court, which needs to attract the best and brightest intellectual, ethical and spiritual talents. Should not such fateful decisions be made by a forum including people like Professor Asa Kasher, author A.B. Yehoshua and Rabbi Yuval Cherlow, instead of judges like Yitzhak Amit, Neal Hendel and Uzi Fogelman, with all due respect to their legal abilities? Would not rulings on our most important ethical matters receive greater respect if they were made by such a forum?
Such a body would certainly generate questions over how its members are appointed (the appointments committee could include members from each branch of government, with mandatory opposition representation as well as a few optional Israel Prize laureates), the matters adjudicated (perhaps primarily interpretation of Basic Laws), and more.
It is important not to be alarmed by the fact that this is a global precedent. Rather, there needs to be a focused discussion on the advantages and disadvantages of the idea. One should not rule out the possibility that Israel will give birth to an idea that could be used around the world. We also must not fear the fact that not only jurists are interpreting the law. Even the legislators in this country are not necessarily jurists. If legal experts continue to perpetuate their exclusivity in making such rulings, they may raise suspicions of seeking to maintain personal prestige or the monopoly of their clique at the expense of the judicial system's standing.
It is clear that the most suggested name making the rounds, "a constitutional court," does not befit such an institution, because trumpeting its legal character is contrary to the logic in proposing a body that seeks to strip away the jurists' exclusivity. "The House of Lords" would work if it did not sound so English. Thus, perhaps, we would be best adopting the ancient, beautiful Jewish word "Sanhedrin," even if it is rooted in Greek, and despite the fact that it would not be run solely by sages in the historical sense. Rather, it would feature modern sages - secular, religious, and of course, non-Jews.
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