by Jonathan Rosenblum
June 19, 1998
No question about it, Aharon Barak is Israel's most skillful politician and arguably its most powerful. If Bill Clinton is the Teflon president, Barak is the boomerang Supreme Court president.
Any intrepid soul who criticizes the judicial activism of the Barak court subjects himself to an immediate and fierce chorus of obloquy. Politicians from Yossi Sarid, eager to protect Meretz's power base in the court, to Tzahi Hanegbi, still looking for respectability as justice minister, will lecture the offender on his unfitness to serve as dogcatcher. And if he happens to wear a kippa, like Yigal Bibi, he will be told to go back to Teheran where he belongs.
Free speech on the most crucial issues of a democratic polity is thus chilled in the name of preserving democracy. Legal commentators such as Moshe Negbi call for newspapers to be closed for challenging the court's decisions and MK Elie Goldschmidt introduces legislation making criticism of the court a crime.
In a truly alarming article in Azure, Evelyn Gordon details the hysterical reactions to challenges to the court's law-making, even as she demonstrates how tepid those challenges are compared to the daily fare in in respected American journals and on the floor of the US Senate, without American democracy being thereby imperilled.
'If contempt [read criticism] of the courts is allowed, violence will surely follow,' reads a recent Post headline, reflecting the current wisdom. Strange how those who ceaselessly repeat that mantra never concern themselves that their own vituperative attacks on the prime minister endanger him.
Wrapping himself in the mantle of 'defender of democracy,' Barak has succeeded completely in deflecting public awareness of precisely how radical is his judicial agenda. Yet no court in the world wields the power of the Israeli Supreme Court.
By all but abandoning traditional legal rules on who may bring a suit standing) and what kinds of issues are properly for the court (justiciability), Barak has made it possible for any citizen to challenge any government decision, and thereby turned the court into a supra-legislature.
Indeed Barak has little interest in typical common law judging of disputes between two litigants, as opposed to serving as ombudsman over all governmental decisions. He recently counselled the parties in a suit raising the issue of whether a scholarly interpolation of a Dead Sea scroll is protected intellectual property to settle the case. Yet it is precisely such issues of first impression, in an area of law of crucial importance to an advanced technological society, that the court should be clarifying.
CRITICS of the court's jurisprudence, Barak charged recently, are ignorant boors, who fail to recognize that democracy is more than majority rule and includes 'basic values and human rights." Well yes, representative government does imply certain rights - most obviously freedom of political speech (interestingly the one right afforded far weaker protection in Israel than in the US).
But Barak does not attempt to demonstrate how the various 'unenumerated" rights that he feels entitled to import into the Israeli legal system are implied by the requirements of democratic government. He barely acknowledges that democracy is also a process of lawmaking by elected representatives, and shows no awareness of the central problem of democratic jurisprudence: the inevitable tension between judicial review by unelected judges and representative government. He is hostile to legislatures and suspicious that in pursuit of 'short term political goals, the legislature will harm fundamental democratic values."
By contrast, Moshe Landau, a predecessor as president of the Court, has written that he can think of no law ever adopted by the Knesset that could be described as oppression of the minority. 'More frequently, members of the political minority see judicial review as a 'second chance' to overturn the decision of the majority."
Barak is correct that all judicial decision-making inevitably will implicate the judges' own value system, but that is a far cry from saying that the court may impose its values in areas traditionally considered outside its ambit. The Barak court increasingly ventures into areas where none of the traditional legal materials - statutes, judicial precedent, even a properly developed factual record - exist to guide it.
Thus in a recent case, a panel on which Barak sat ordered Educational TV to air a show portraying teenage homosexuality positively without citing a single statutory provision or judicial precedent. The court did not consider - nor would it have deemed relevant - abundant evidence that for teenagers whose sexual identity is often in flux such shows will increase the incidence of homosexuality.
Such decisions represent not the rule of law, in former justice Menahem Elon's formulation, but rule of the judge. But as the court engages in naked imposition of its value system, it must confront the question: Why should a democratic society prefer the value choices of unelected judges, chosen from an extremely narrow band of the public, over those of elected representatives.
Barak has never done so. Barak's ideal judge is guided by the views of 'the enlightened society in whose midst he dwells." For him the term betokens not areas of general societal consensus, but the opinion of the cultural elite - that segment of the population 'whose values are universal,' which is 'enlightened and progressive,' and part of 'the family of enlightened nations." Sound like the typical Meretz self-description?
Presumably Landau did not seek to undermine one of society's basic institutions when he warned of the Barak revolution: '[Whatever the failings of representative government], the remedy will not be found in establishing an oligarchical regime - nomatter how smart and wise they may be - authorized to strike down the words of public representatives in matters of law-making without being brought to account to the public from time to time in elections."
Related Topics: Israeli Supreme Court
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