Heads I win, tails you lose

Constitutional fever has gripped the country. At least three parties - Meretz, Shinui, and Center - have placed the enactment of a written constitution at the top of their legislative agendas, and a drive is in progress to collect one million signatures in favor of a constitution. We are solemnly assured that only a written constitution can guarantee Israeli democracy and secure the rule of law.

The latter claim is, of course, nonsense. England has somehow muddled along for centuries without a written constitution and with its democratic bona fides unquestioned.

In truth, it would be easy enough to conceive a written constitution that would be a great improvement on the present situation. A properly drafted constitution could go a long way towards instituting a real system of checks and balances in Israel and redressing the accumulation of unprecedented power by the Supreme Court.

Over the past 10 years, Israel has witnessed the steady erosion of the power of the legislative and executive branches in favor of the judicial branch. Increasingly, the Supreme Court has assumed policymaking functions that no other court in the world claims for itself.

The court has not even hesitated to move into those areas long excluded from the purview of the courts in most democracies. Most conspicuous has been the court's entry into military and foreign policy.

Thus in the context of a civil damages action, the court recently undertook to fine-tune the army's rules of engagement with terrorists by requiring soldiers pursuing suspected terrorists to fire sequentially, in coordination with one another.

And by entering a preliminary injunction against the closing of Orient House, Justice Dalia Dorner usurped the government's right to make foreign policy, an area always considered sacrosanct from judicial interference. Petitioners did not even allege that the government lacked the legal authority to close Orient House, only that the decision to do so was 'politically' motivated and likely to lead to violence.

It would be hard to conceive a more perilous inquiry for the court than the motivations of duly authorized officials. Imagine that the American bombing of Iraq last year had been challenged on the grounds that the
president was trying to distract attention from Monica. The case would have been thrown out of court without a hearing. Democracies impose a penalty on wrongheaded policies of the executive and legislative branches - but that punishment is at the polls, as we have just witnessed, not in the courts.

WHAT provisions might be included in a constitution that sought to leave policymaking functions in the elected branches? First, it would correct the anomalous situation whereby the president of the court controls the judicial selection process, with little executive or legislative branch input. Such a system exists nowhere else in the world and leaves the court free to ignore the values of the broader society.

Such a constitution would also do away with another anomaly in Israeli government system. The court has judicially created a new office of attorney-general, who acts as its watchdog to control the executive and legislative branches. His decisions, the court has ruled, are binding on the government - even in pure policy matters - and he has been largely immunized from firing.

As a consequence, any 'nine citizens of Jerusalem' can challenge the foreign policy of the government in the Supreme Court. Only the duly elected government cannot be assured of a hearing on its legal position if the attorney-general refuses to uphold its position before the courts. A properly drafted constitution would correct this court-created aberration, and return the attorney- general to the executive branch from his current role as emissary of the Court.

By subjecting every governmental decision to its own sense of 'reasonability,' the court has weakened it the rule of law. It has substituted 'the rule of the judge' for the 'rule of law,' as former court deputy president Menachem Elon put it. In the process it has transformed itself, in the words of former court president Moshe Landau, into 'an oligarchy of wise men.'

A constitution could partially redress this point by explicitly limiting the scope of the court's review to government actions that are 'arbitrary or capricious,' as Evelyn Gordon has proposed. It is doubtful, however, that even raising the standard of judicial revieIf the court is going to enter into explicitly policymaking areas involving the determination of society's fundamental values, we would be much better off with a constitutional court as in Germany and other European countries. The justices on such courts typically have
political experience and are selected to represent the population at large.

Far better that a court engaged in establishing the basic societal values should reflect the population at large, unlike our court where I would bet confidently that at least half the members voted for Meretz and nearly all for the parties of the Left.w would do much to deter a court intent on becoming a super-legislature.

While it would thus be possible in theory to draft a constitution that instituted an American-style system of checks and balances, that is the last constitution likely to emerge in the present political climate. As Professor Ruth Gavison, the founder of the Association for Civil Rights in Israel, social critic Dror Ben-Yemini, and others within academia and outside have recognized, the goal of proponents of a constitution is to increase the power of the elites through the court.

Court President Aharon Barak has described the 1992 Basic Laws as arming the Court with 'non-conventional' (i.e., nuclear) weapons. Despite the relatively narrow set of rights enumerated in the 1992 Basic Laws - eg, the right to contract, the right to travel - he has persisted in viewing the Basic Laws as a broad grant of authority.

The Basic Laws, he claims, were intended to create a whole array 'of particular rights without name.' The range of such judicially created rights is, in his opinion, virtually unlimited since it is the judge's right and duty to 'enrich his legal system with fundamental values not accorded judicial recognition.'

Barak would treat a formal written constitution as an even greater grant of authority to the judiciary than the Basic Laws of 1992, and that is precisely what the proponents of a constitution desire. They seek to ensure that the recent electoral victory for the forces of 'progress' and 'enlightenment' be made permanent.

They are frightened by the vagaries of electoral politics and the shifting tides of fortune. And so they seek assurances that if they should ever again lose the prime ministership the country will be run in the interim by the president of the Supreme Court and his acolytes.

Heads I win, tails you lose.