Curbing Judicial Despotism

Edited transcript of the Eidelberg Report, Israel National Radio. April 14, 2008.

A Jerusalem Post article of April 11, 2008 says: “Former Supreme Court president Aharon Barak has called on Prime Minister Ehud Olmert to fire Justice Minister Daniel Friedmann, whom he accused of threatening to destroy Israeli democracy.”

Barak’s statement is either disingenuous or rooted in willful ignorance. Israel cannot honestly be deemed a democracy if only because Barak’s notorious dictum, that “everything is justiciable,” renders the unelected Supreme Court superior to the legislative and executive branches of government. Indeed, if “everything is justiciable” the Court can prescribe the morality or way of life of the Jewish people: Consider a few judicial rulings:

  • ● The Court ignored the Attorney General’s decision, affirmed by the Knesset Elections Committee, to disqualify the Balad Party for violating Basic Law: The Knesset, which prohibits any party that negates the Jewish character of the State.

  • ● The Court ruled that the Chief Rabbinate does not have final jurisdiction over conversions.

  • ● The Court ruled that kibbutz shopping centers may remain open to the public on the Sabbath.

  • ● The Court ruled that land purchased by the Jewish National Fund for the purpose of Jewish settlement must be sold to Arabs on an equal footing.

  • ● The Court ruled against a decision of the Ministry of Defense to level certain Arab houses used by terrorists to murder Jews.

  • ● The Court ruled that Judea, Samaria and Gaza are “belligerent occupied territory.”

Hebrew University professor of law Ruth Gavison said: “No Supreme Court in the world has taken upon itself such powers. Former Supreme Court president Moshe Landau declared: “How can it be considered democratic to allow an oligarchic body such as the Supreme Court to review decisions that were made in a democratic fashion [by the Knesset]?” Former President of Israel, the late Chaim Herzog said: “In a democracy, according to [Judge] Barak, the courts are placed above the Government. In my humble opinion, this approach endangers, in certain cases, the very basis of democracy.” Incidentally, Judge Robert Bork, one of the finest legal minds in America, regards Israel’s Supreme Court as the worst in the world. Israel’s Supreme Court makes a mockery of democracy.

Friedmann, a renowned jurist and professor of law, proposed a bill to restrict judicial review to ordinary laws as opposed to Basic Laws. Judge Barak claimed this would significantly diminish the High Court’s ability to protect human rights. Yet it was a Barak Court that sanctified the violation of Basic Law: Human Dignity and Freedom when it legitimized the government’s expulsion of 8,000 Jewish women, men, and children from Gaza by ruling, contrary to judicial precedence, that Gaza is “belligerent occupied territory” where that law is not applicable!

According to Friedmann’s bill, if the High Court rejects a Knesset law, “the law will be suspended for six months. In that time, however, the Knesset may vote, by a majority of at least 61 MKs, to enact the law for five years without further court intervention during that period.” Barak charged that this would make the judicial authority more “prone to political influence, and that judges would thereafter be chosen not on the basis of legal expertise but according to their political connections.”

In contrast, professor Gavison, who leans toward the political Left, has candidly stated that that “the judges of the Supreme Court represent a particular segment of Israeli society: Ashkenazi secular men. It is not clear why the entire Israeli society must live according to its dictates.” In fact, the Court has been described as a “Meretz court,” whose ultra-secular agenda is to transform Israel into “a state of its citizens” or a multicultural society.

Professor Friedmann wants to diminish the Court’s power to control the judicial selection process. Only Israel allows almost no role for elected officials in that process. Three members of the nine-member selection committee are sitting members of the Court, including the Court’s president, two are representatives of the Israel Bar Association, and four are members of the two leading parties, including the justice minister and a member of the Knesset Law Committee. The committee’s majority, therefore, is unelected.

Moreover, the two members of the Bar are subject to various forms of pressure by the Court’s president before whom they may frequently appear. Since the Court’s president handpicks the judges for every case, he can very much determine the selection of his own successor as well as the Court’s character as a whole. In short, Israel’s High Court of Justice is a self-perpetuating oligarchy.

Barak’s dictum, that “everything is justiciable,” violates the rule of law essential to any decent democracy. The rule of law ultimately depends on reverence for law. Reverence, however, is a species of veneration, and veneration is for things venerable, i.e., old. Yet Barak contends that Israel’s Basic Laws should be easily changed. But if Basic Laws can be easily changed they can hardly be “basic” or become old and venerable.

A profound defect in Barak’s mentality is this: his decisions are radically egalitarian. Egalitarianism implies not only equality between individuals but also between generations, which is obviously subversive of reverence, the precondition of the rule of law. Not every generation has had a Moses or a Solon, a James Madison or an Alexander Hamilton.

Whereas Barak would have Israel’s Basic Laws readily amendable, Madison warns that frequent amendment would “deprive the government of the veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.”

Madison deemed reverence for law essential to good government. A wise statesmen would therefore limit the application of equality by requiring extraordinary majorities to amend a nation’s basic laws or constitution. This is an essential precondition of the rule of law.

Israel, of course, has no constitution, which very much accounts for the fact that the rule of law in this country has become the rule of men, especially of judges who regard “everything is justiciable,” a dictum that leads to judicial despotism. Hamilton warned that judges should exercise judgment, not will. Unfortunately, the judicial activism of Israel’s Supreme Court merely reflects its leftwing predilections.

To democratize the Supreme Court, it will first be necessary to amend Basic Law: Judiciary, and this can only be done by the Knesset. But this means one must democratize the method of electing the members of the Knesset. Israel was made a single nationwide electoral district in which parties compete on the basis of proportional representation. This must be replaced by multi-district or constituency elections.

Proportional representation compels citizens to vote for fixed party lists. This maximizes the power of the party leaders, especially of those who become cabinet ministers, who top their party’s list. This renders the Knesset subservient to the government. To strengthen the Knesset, it must be separated from the executive, and MKs must individually accountable to the people in constituency elections. This is essential to democracy.

A Knesset composed of representatives individually accountable to voters—a large majority of which identifies with the Jewish tradition—will democratize the mode of appointing judges and make them more representative of Israeli society as a whole.

I have long advocated a presidential system comparable to that of the United States. I would have the president nominate Supreme Court judges with the advice of council learned in Jewish and secular law. The nominees would be confirmed by the Knesset.

The Knesset could appoint a committee of its own members to question judicial nominees in public view as is done in the United States. I am well aware of the partisanship and playing to the media or “the folks back home” that occur during Senate conformation hearings. Nevertheless, these hearings—Senators questioning nominees and the answers of these nominees—provide remarkable education by correlating the history of American constitutional law to current public issues.

Unlike the case of Israel, where the people are effectively excluded from learning about the legal knowledge and attitudes of Supreme Court nominees, in America the people are virtually invited into the Senate, where democracy, whatever its vices, has the opportunity to display its virtues. Judge Barak seems abysmally ignorant of basic principles of democracy—a term he deliberately uses to obscure his elitist political agenda.

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