Democracy vs. Rehavia
by Jonathan Rosenblum
July 20, 2001
Few legal issues in Israel today are so much discussed or so little understood as that of the proposed constitutional court. Supreme Court President Aharon Barak has called the proposal to establish such a court – a proposal which has already passed a first reading in the Knesset -- "a dangerous juke that must be exterminated in infancy.’’
At the outset, it should be noted that most Western European democracies have such courts. While the scope of their jurisdiction varies, in general, such courts deal with the interpretation of highly abstract terms, like "human dignity,’’ whose meaning is pretty much in the eye of the beholder, and with matters that are essentially political in nature.
The methods of selection of justices also vary from country to country, but all involve a high degree of imput from the political branches of government. Justices, in a number of countries, need not even be lawyers because the nature of the issues with which they deal is political. The purpose of the constitutional court is to reflect the basic values of society.
The second crucial point to remember is that Israel essentially has a constitutional court already. When the justices of the Supreme Court sit as a BaGaTz, exercising original jurisdiction, rather than reviewing lower court decisions, they are acting like Western European constitutional courts.
The real issue at stake, then, is not whether Israel should have such a court, but how the justices should be picked.
Under the present system, the Court President Aharon Barak, in consultation with the Justice Minister, picks new justices, whose appointments are then rubber-stamped by the other seven members of the judicial selection committee. Of late, the newspapers have begun announcing new justices even before the full selection committee meets.
How does Barak justify this system of judicial selection, which has produced, in Professor Ruth Gavison’s words, "a sect which is too uniform and effectively perpetuates itself’’? The system is necessary, he says, to ensure "professional’’ judges of the highest standard, as opposed to "political’’ judges.
But the present Court already is political and not professional in two ways. First, the justices increasingly eschew the traditional tasks of judges in favor of exercising the functions of the elected branches. Second, the Justices tend to reflect a particular ideological bent.
Can anyone remember the last time the Court issued an important ruling in the area of torts or contracts? Indeed the Court has gone out of its way to avoid establishing rules in rapidly developing areas of private law, such as intellectual property, even though enunciating such rules is a typical function of high courts around the world.
Rather than write reasoned legal opinions, the Court often prefers to achieve its desired outcome by "advising’’ one of the parties to withdraw rather than be socked with court costs. In one recent petition by a Beersheba policeman seeking to have the police force accommodate his Shabbat observance, the three justices advised petitioner to withdraw his petition. They thus avoided having to explain why Shabbat-observant Jews have less judicial protection in Israel, where Shabbat is an officially recognized day of rest, than they have been afforded in America under the free exercise clause.
The Court has taken over parliamentary functions. When YaT"D, an advocacy group on behalf of Downs Syndrome children, failed to obtain from the Knesset a law mandating mainstreaming of Down Syndrome children, the group turned to the Court and won. As a matter of public policy, universal mainstreaming may be a good idea, but the issue is one on which there is a debate among experts and the Court’s decision will likely cost the state tens of millions of shekels annually. Such decisions are for the Knesset.
Similarly, when Court President Barak created an independent commission to consider Shabbat road closings around the country, rather than decide on the closure of Bar Ilan alone, he usurped the functions of the elected branches.
In short, the Supreme Court justices are not spending much time on the traditional business of professional judges. Rather they are governing the country. And that is a task , former Court President Moshe Landau, rightly notes "they are utterly incapable of fulfilling, and for which they have not been trained; they were trained to judge, not to govern.’’
Justice Barak justly scoffs at the idea of picking justices by ethnicity or other such criteria, asking: Would you choose your doctor by ethnicity, rather than medical expertise?
Obviously we would not. But neither would we choose the national soccer team on the basis of medical school examinations.That is what happens when (assumed) legal expertise becomes the criterion for selecting a supra-legislature.
No one would deny that the values of the overwhelming majority of today’s Supreme Court justices reflect a particular elite ideology not shared by the vast majority of the Israeli population. What percentage of Israelis would have enthusiastically applauded Daniel Barenboim’s defiant conducting of Richard Wagner together with Justice Dorit Beinisch and State Attorney Edna Arbel? Nor has Aharon Barak been labelled "the Admor of Secularism’’ for nothing.
The Court repeatedly manipulates legal doctrines to achieve particular political results reflecting its ideology. The Court invoked the doctrine of non-intervention in the conduct of foreign policy when it rejecteted petitions against illegal digging by the Moslem Waqf on the Temple Mount. Justice Dalia Dorner, however, ignored the same doctrine when she ordered the reopening of Orient House after government closure in 1999.
"Too late’’ wrote Dorner, in rejecting a petition against Faisal Husseini’s burial on the Temple Mount, on the grounds that it is forbidden to bury someone outside of a cemetery or at an archaelogical site. But contrary to what the Court claimed, Makor Rishon’s Kalman Livskind has revealed, Husseini’s funeral procession was still hours away from entering Jerusalem. Tellingly, no tardiness problem prevented the Court from hearing a petition against the Rabin government’s expulsion of 415 Hamas members, even though they were already at the Lebanese border.
Court President Barak contemptuosly labels any alternative to the present system, with him at the pinnacle, as "political.’
But there is another term for political. That term is democracy. In a democracy the fundamental value determinations of the society are made by bodies broadly representative of the norms of the population and not by an elite of the "wise.’’
Related Topics: Israeli Supreme Court
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