Constitution Fever Again
by Jonathan Rosenblum
May 24, 2006
A written constitution has long been the panacea of Israeli elites for all that ails Israeli democracy. So it should come as no surprise that Prime Minister Ehud Olmert has placed the completion of such a constitution near the top of the agenda of his new centrist party, Kadima. And the Israel Democracy Institute, which boasts an annual budget of tens of millions of dollars, has just released with great fanfare an English-language version of its "consensus constitution." The latter might be better characterized, as we shall see, as the constitution for the preservation of the reign of Aharon Barak, the retiring President of the Israeli Supreme Court.
The truth is that much does ail Israeli democracy, and a written constitution could go a long way to curing those ailments. Such a constitution would focus on the "rules of the game" – i.e., on procedure and structure over substantive rights – and delineate the checks and balances between the various government branches to a much greater extent than is the case today. Such a constitution could redress the steady erosion of the power of the legislative branch in favor of the Supreme Court, on the one hand, and in favor of the bureaucrats of the Treasury Department, on the other hand, and by so doing return law-making power to the elected branches of government.
It is easy to list a wide number of anomalies in the present Israeli system in need of correction. Chief among them would be Israel’s unique system of judicial selection, which gives the three sitting justices of the Supreme Court on the nine-member judicial selection committee virtual veto power over the selection of their successors, and thus ensures that Aharon Barak’s judicial activism will dominate the Court forevermore.
Another welcome change would be to limit the powers of the Attorney-General, who the Supreme Court has turned into its virtual emissary to control the executive branch. The Supreme Court has given the Attorney-General unreviewable veto power over the actions of the executive branch. Under current Israeli standing doctrine, any citizen who objects to any action of the executive branch can challenge that action in court. But the executive branch itself has no standing to challenge the opinions of the Attorney-General. These powers of the Attorney-General are the judicial creations of the Supreme Court, and do not derive from statute.
The scope and standard of judicial review also calls out for dramatic narrowing. Employing a standard of "reasonability" to assess every action of the executive branch, the Supreme Court simply substitutes its policymaking judgment for those of the executive branch. A specific constitutional provision limiting judicial review to decisions that are "arbitrary and capriciousness" might clip the Court’s wings a bit (though sufficiently activist justices might well conclude that all which strikes them as unreasonable is also arbitrary and capricious.) A specific constitutional provision limiting the Court’s review in areas of foreign and military policy might also provide some protection against the ever increasing encroachments of the Court into these areas.
AS WELCOME AS CHANGES SUCH AS THOSE OUTLINED ABOVE MIGHT BE, they are not going to happen. The Israeli elites pushing for a written constitution view the Supreme Court as their last bastion of defense against the unwashed hordes. A written constitution, in their eyes, is primarily a means of securing and expanding the power of the Supreme Court.
The draft constitution of the Israel Democracy Institute proves the point. For starters, the draft constitution adopts the current method of judicial selection, which has, in the words of Professor Ruth Gavison, turned the Israeli Supreme Court into a "self-perpetuating cult."
Worse, the IDI draft constitution adds a whole series of amorphous new rights, which the Court can give any meaning to it wishes – for example, the "right to freedom." And, even more frighteningly, the new draft constitution specifically states that various "social" and "economic" rights flow from the right to "human dignity," which is already enshrined in a Basic Law.
Those social and economic rights would inevitably transfer to the Court the one power that still remains nominally in the hands of the Knesset, the power of the purse. In the name of protecting social and economic rights, the Court could establish its own budgetary priorities. All budgetary planning would fly out the window. The Court would be in a position to determine the appropriate level of budgetary spending on a whole host of programs, without the responsibility of deciding what other expenditures should be cut to free up the necessary funds, or what taxes raised.
Not that the Israeli Supreme Court needs any new rights to impose its own social vision on Israel. Last week, in his decision on the Tal Law, Justice Barak wrote that the Supreme Court has the right to strike down any Knesset Law, even a Basic Law, which, in its view, conflicts with Israel’s character as a democratic and Jewish state. According to Barak, the Court has that power even where it can point to no provision in any existing Basic Law to justify its decision.
In another case decided last week, Barak gave a textbook example of how the Court can elevate new "rights" to constitutional status, without any legislative mandate. That case involved a temporary law first enacted in 2003, which denies to residents of the Palestinian Authority the right to reside in Israel by virtue of marrying an Israel citizen.
In an Email sent to a friend on the Yale Law School faculty, Barak boasted how he had convinced a majority of his colleagues on the Court to recognize a new set of "family rights" under the rubric of human dignity. (There is a Basic Law on Human Dignity.) In the past, Barak has written that the Supreme Court has the right to import into the Israeli legal system, unenumerated rights from other legal systems. And in the "family reunification" case, he showed that he was not just speaking theoretically.
Barak told his colleague that he had swayed eight colleagues out of ten to his view that those family rights included the right of an Israeli citizen to dwell with his or her partner in Israel. And he even managed to convince five of those eight that security concerns could not justify the infringement on the "family rights" that he had himself created out of whole cloth.
For technical reasons, the Court did not strike down the temporary statute, but Barak was right to claim that he had a majority for doing so if the Knesset passes the law again, even if it enshrines it in a Basic Law. Thus Israel, by judicial fiat, would become the first country in human history, or at least since the Trojan horse, to admit enemy nationals into the country in a time of war – and as a matter of right.
Surely, it cannot be denied that the Hamas-led Palestinian Authority is in a state of belligerency with Israel. It does not recognize Israel’s right to exist, and legitimizes as self-defense all terrorist activities against Israeli civilians. Even before Hamas took power, the Palestinian Authority had spent more than a decade whipping the population into a frenzied death cult – "Kill Jews; Win Paradise." What country with an iota of common sense would admit those raised on the propaganda spewing forth from the official PA educational system and media into its borders, especially when those previously admitted under the rubric of family reunification have been responsible for 10% of the terrorist acts committed by Israeli Arabs.
Israel would truly have a lot to look forward to from a written constitution adding new powers to its present Supreme Court.
Related Topics: Israeli Supreme Court
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