Some opinions are more equal than others
by Jonathan Rosenblum
May 4, 2001
Just before Pesach, Bar Ilan University held a three-day symposium on the role of the Supreme Court in Israeli society, which concluded with a speech by Court President Aharon Barak. That speech stunned the audience composed of some of the leading legal experts in the country.
As described by Ben-Dror Yemini in Maariv, Justice Barak returned "live fire’’ at those who had the temerity to offer criticisms with typical academic understatement.. Listeners were shocked to hear some of Israel’s leading academics referred to as "Mr.’’ rather than the customary "Professor.’’ Justice Barak’s most frequent response was the unacademic, "He doesn’t know what he is talking about.’’ Of all the criticisms raised in the course of conference not one was found by the Court President to have the slightest validity.
For having the effrontery to suggest that there might be merit to a constitutional court, Professor Claude Klein, one of Israel’s leading authorities on comparitive constitutional law, was accused of having allied himself with the forces of darkness. Never mind that constitutional courts are found in virtually every Western European parliamentary democracy.
The message, as summed up by Yemini, was clear: "The Court President is in total possession of the truth, and all opinions to the contrary are `nonsense’.’’
All agree our Court President is a man of prodigious abilities and great personal charm. He shares that high estimate of his talents and appears to entertain few self-doubts about his ability to determine the truth or his right to impose it on others.
Former Court President Moshe Landau pointed to this hubris in his eye-opening interview with journalist Avi Shavit last October. "When he [Barak] deems an objective worthy, he has to achieve it come what may,’’ said Landau. Landau described Barak as seeking "to interject his moral values into society’’ in what amounts to "a kind of judicial dictatorship.’’
The cost of that "arrogance and pretension,’’ the imposition of the values of a "certain sector of the public’’ on the entire society, according to Landau, has been to exacerbate social rifts and to undermine the public’s "faith in the impartiality of the legal system in matters of public disagreement.’’
Justice Barak’s legal views are not that of a disinterested academic but those of the most powerful figure the Israeli legal system has ever known. When Barak describes law primarily in terms of particular rights, which judges are best suited to determine, even when they have to extract them from the ether, the judge of whom he is speaking is himself.
Similarly Barak’s summary dismissal of all proposals for reform of the current system of judicial selection reflects his position as the most influential figure at present in the selection of every judge in Israel. The characterization of the idea of a constitutional court as a "dangerous juke that must be stamped out in its infancy’’ stems from a shrewd appraisal of such a court as a threat to his ability to continue functioning as the ultimate arbiter of values in Israeli society.
Justice Barak’s worldview reminds one of Orwell’s Animal Farm: All opinions are equal, but some are more equal than others.
Justice Barak’s conception of democracy primarily in terms of "ends’’ or "rights,’’ rather than as a process for the creation of laws, puts him fundamentally at odds with the basic value of representative democracy: equality. "One man one vote’’ is an expression of the belief that each citizen should have an equal say in determining the values that a particular society chooses to advance, rather than that task being consigned to a group of Platonic guardians.
Barak, however, views the opinions of democratically elected legislators as less equal than those of justices, who are selected out of the sight of the public by a small panel controlled by the Court President. His writings are laced with contempt for elected legislatures, which are inherently suspect of "harming fundamental democratic rights’’ in the pursuit of short-term political goals.
Among those fundamental rights is to have the Supreme Court superior to the other branches. Retiring Justice Yitzchak Zamir was speaking as a Barak surrogate when he labelled all legislative proposals to change the method of judicial selection, to restructure the role of the attorney-general, or to create a constitutional court more representative of the society at large as an attack on "values essential to the rule of law.’’ Yet each one of these proposals seeks nothing more than to correct anomalies in the Israeli legal system and to bring that system more into line with virtually every other parliamentary democracy.
Barak’s lack of concern for democracy as a process of how laws are enacted and by which branch of government finds its parallel in his views on Israel’s constitutional development. He felt no compunction about elevating the 1992 Basic Laws to constitutional status and claiming that they granted the Supreme Court vast new powers. Yet the enactment of those laws was not proceeded by any significant public debate, and not even a third of the Knesset voted for either one of them.
No more than a handful of MKs had more than the vaguest idea of what they were voting for. (Not that it would have mattered. Barak has written that justices need not be bound to the specific provisions of the Basic Laws ; they can add new rights, as they see fit, to those enumerated.)
Thus the 1992 Basic Laws lack the sina qua non for constitutional validity: that they reflect the supreme will of the people. Israel is the first country in which the constitution was "discovered’’ by the Supreme Court.
But Justice Barak is untroubled as long as the ends are good. Chief among those ends is conferring on the wisest among us the power to set the course for society.
And when it comes to identifying that wisest of men, Justice Barak has no doubts.
Related Topics: Israeli Supreme Court
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