Megidor Panel Considers Rewriting the Supreme Court's Role

The Megidor Committee, which is examining the structure of government in Israel, is not dealing only with the powers of the government and the Knesset. A report submitted by a member of the committee, former minister and professor of law Shimon Sheetrit, proposes an extensive curtailment of Supreme Court authority. Sources in the committee still cannot say whether all of Sheetrit's recommendations will make it into the final report, but they say that "extensive parts of them will surely be adopted."

Sheetrit's central and revolutionary recommendation is to switch the court to "declaratory" rulings, such as Britain's highest court has issued in recent years. Today, the Supreme Court nullifies laws and sections of law that contradict the constitution, meaning the Basic Laws.

In Britain, the court is not authorized to nullify laws, but only to declare that they stand in contradiction to the European Treaty of Human Rights. After such a declaration, Parliament can amend the laws in a fast-track procedure, but it can also choose not to do this. Sheetrit thinks that adopting this model may prevent further decline in the status of the court, since the decision on whether to change the law or not will be passed to the Knesset.

Sheetrit notes there is an increasing tendency in the Supreme Court to issue verdicts ruling the existing situation illegal or unconstitutional, but without issuing practical orders. The court used this line of action on the issues of conversion to Judaism and drafting of yeshiva students, and in doing so allowed the Knesset and the government to rectify the problem. Therefore, Sheetrit claims, the "declaratory model" will bring no profound change.

Social representation

The proposal for a constitution prepared by the Knesset Constitution Committee actually prefers the Canadian "override" model, according to which the Supreme Court is authorized to nullify laws, but the parliament can pass them again with a special majority. This would replace the current situation, in which in order to change a Supreme Court ruling, the Knesset must go through three rounds of voting to pass an amendment.

Sheetrit further suggests that the law should state that "hearings on the validity of laws will take place before an assembly of at least nine justices, of which at least three should be women, one an observant Jew, and other members of different sectors of society." In his opinion, "this will give a proper response to reservations voiced in recent years over the lack of social representation on the Supreme Court."

The third proposal, and perhaps the most revolutionary one, is to cancel the revolution that the High Court of Justice instituted in the right of standing, meaning who has the right to petition the court. Sheetrit suggests returning to the prior situation, in which only those who were directly affected by a government decision could petition the court, "in order to reduce the friction between the Supreme Court and the Knesset and government."

The main casualties of curtailing the right of standing would be public petitioners, meaning civil rights and quality of government organizations. Sheetrit thinks that the recent strengthening of these organizations actually enables them to take other forms of action. He says that, "In the past, when the Court expanded the right of standing, with the help of other bodies, including the author of these words, it was necessary in order to fight the manifestations of improper governance and corruption, but today circumstances have changed."

Yatom case

Sheetrit uses as an example the petition submitted by Knesset Member Yossi Sarid in 2001 against the appointment of the former General Security Service man, Ehud Yatom, to head the counter-terrorism staff. The Supreme Court canceled the appointment because of Yatom's involvement in the killing of the terrorists in the Bus 300 affair. Sheetrit thinks that if Sarid had been denied standing, the Supreme Court would have saved itself considerable criticism.

Sheetrit argues that accepting the amendments he proposes would prevent "aggressive legislation against the judicial branch of government." He says: "This possibility is not so far fetched, due to what I call the 'Israeli Paradox': on the one hand, the Israeli court is more prone to interfere with the other government authorities than any other court in the world. On the other hand, the Knesset can also hurt the court's authority, its status or the justices' terms of office." It is fair to assume that many will see the very offering of Sheetrit's proposal as an aggressive action against the judicial branch.

The conversion trap

"We are faced by a classic chicken-and-egg scenario: For a detainee to be considered a legal resident in Israel, he has to complete the conversion procedures, but in order to complete the conversion process, he has to be a legal visitor in Israel." These words were used by the Custody Court Judge, attorney Dan Liberty, to describe the catch-22 that turns the lives of many conversion candidates in Israel into a nightmare. Liberty calls this a Gordian knot requiring the slice of a sword to be undone.

On February 20 Liberty published the verdict in the case of Aleksandr Miso, a Romanian citizen and an illegal alien. He wrote: "As a human, a Jew and an Israeli, I cannot understand how one can consider removing from Israel a man who fully observes Jewish tradition and the Torah, who is undergoing conversion procedures, and all this while his entire immediate family, his mother, (step) father and sister have all converted and are staying in the country legally. In my opinion, the decision at hand is strict, unreasonable and completely disproportionate, and stands in contradiction to the foundation of Israel as a Jewish democratic country.

"Before us stands a man who sees himself as a Jew, lives and acts as a Jew, fully observes the Torah and tradition, and is therefore entitled by law to Israeli citizenship. Truth and justice tip the scales of justice toward a solution by which a man who is undergoing an official conversion procedure, will be automatically entitled to a valid permit to stay in Israel." And he explains: "On the fundamental plane, there is no difference between he who was born to a Jewish mother, and he who is in a conversion process. The one was fortunate to be part of the Jewish people by force of heritage... and the other has in adult life undergone a lengthy and wrangling process of rebirth into the Jewish nation, a process extending over long months of studying and internalizing, out of a free and total choice to take part in the destiny of the people of Israel for generations to come."

Opposing the Interior Ministry's position in the matter, Liberty writes that "the fact of a man being a legal or illegal alien in Israel, is not enough to ascertain his personal qualification to convert and to enter the people of Israel..." The question of who is worthy of conversion into Judaism is, in his opinion, "a profound issue in Jewish law, whose basis lies in an impartial judgment of the converter by the converting rabbi. The converting rabbi must rule whether the man before him is a 'converter,' that is, a man who honestly asks to enter the people of Israel... or whether perhaps the man before him does not speak his true heart."

A point of clarification: Custody Court judges are only responsible for issues of illegal aliens' arrests, and therefore Liberty's ruling on the more general issue carries no commanding authority. Yet, there are not many who are as familiar with the reality of illegal aliens, their arrests and deportation, as the Custody Court judges. Therefore, Liberty's criticism still carries at least a considerable public significance. Liberty himself says: "God willing, this decision will help amend the situation in the future."

Not authorized to criticize

The deputy spokesman for the Interior Ministry, Moshe Mosko, responded that the ministry is guided by the rules of the Special Conversion Court, which were approved by the attorney general. These "rule that no conversion procedure will be opened for foreign subjects, and judgment on these cases is left for the exceptions' committee."

Mosko further writes that "the Custody Court has no authority to criticize the Interior Ministry's judgment in its decisions regarding the granting of visas, but only on the matter of the arrest and release on bail of those in custody, after they had been issued an expulsion warrant for illegal stay in Israel."

The State Prosecution responded that "the declarations made in the Custody Court's ruling are not among the matters under its jurisdiction. Judge Liberty's decision stands in contradiction to the state's policy on conversion procedures in Israel, and also in contradiction to the ruling of the Supreme Court."

In the Guzman verdict, given on July 2005, then-president of the Supreme Court Aharon Barak ruled that the Special Conversion Court's decision to condition the conversion on legal residency in the country, was in accordance with the law, and that the petitioner has no legal right to convert specifically in Israel. Yet, Barak ruled, this policy may have exceptions. Liberty writes, in line with the Guzman verdict, that the conversion body must indeed consider the illegal status in its decision whether to convert or not. But that, in his opinion, is only one of the elements that should be taken into account.

And what of Miso in the meantime? On September 1 he was forced to leave the country. The Interior Ministry announced that "the conversion candidate left the country on his own accord, and will live within a Jewish community in Romania. The candidate will present the chief rabbi of the conversion body, Rafael Dayan, with recommendations from the local rabbi on his absorption into the Jewish community in Romania. Rabbi Dayan will examine the recommendations, and if he finds them satisfying, he will contact the Interior Ministry and recommend the appellant's return to Israel for the completion of the conversion process."

There is no doubt, it is very hard to be a Jew.