A Very Supreme Court

By DAVID PFEFFER
I don’t get Israel. At least not the interruption, exaggeration and excitability that characterize what passes for civil discourse. Understanding politics involves not only Hebrew comprehension but Hebrew comprehension of overlapping debate.
Clearly locals get it. Apparently they see passionate discourse as action or perhaps leading quickly to action some of which, at least to one side of an argument, may be at a minimum untoward and at a maximum the death knell of democracy.
Case in point – the on-going dust-up over the recent Supreme Court decision effectively paralyzing development of the country’s vast natural gas resources. The decision, while otherwise approving the government’s agreement with the gas production consortium, voids its long-term price setting clause, based evidently on the principle that a current administration must not hamstring a future administration’s leeway to enact change.
Nice, say the agreement’s supporters, except there already are long-term agreements obligating future administrations, such as the Oslo accords, peace treaties with Egypt and Jordan and new strategic arrangements with Cyprus and Greece. These latter have great interest in buying Israel’s natural gas. Reconciliation with Turkey too may depend on Israeli gas to ease dependence on imports from not-so-friendly Russia.
Israel stands to gain enormous revenue, liberating her to no small degree from reliance upon outside aid but the agreement’s detractors, who had appealed its implementation to the Court, advocate greater in-country use of the resource and lower consumer prices than agreed to. Many oppose resource-exploiting “tycoons” who profit at the expense of the people. Accusations of corruption abound.
The Court found with the appellants, resulting in a chorus of dischord. The Justice Minister was politely but emphatically critical of the Court’s decision and perceived overreach. The Court, she said, exceeded its mandate; justices should be appointed who understand the concept of separation of powers.
Backlash was swift and apocalyptic. The Court’s current president, former justices, legal experts, editorial writers and commentators were enflamed. How dare a Justice Minister criticize the Court? How dare she suggest limits to its jurisdiction? Such behavior opens the gates of hell, she should resign, democracy is threatened, the only institution protecting the country from autocracy is under attack by the very person charged with defending it. One does not criticize the Court.
In contrast, the Prime Minister declared that while the government respects the Court and accepts and will abide by the Court’s decision, no institution is beyond criticism. Others argued that what is at stake is not Israel’s democracy but her attracting necessary investors and her ability to enter into long-term contracts, labor agreements, resource sharing, infrastructure development and treaties.
The agreement’s supporters regard the Court’s disapproval as political activism rather than judicial wisdom – like a bank, which, while pretending to take the best interests of good financial practices as its sole consideration, approves a car loan with the simple stipulation that you may never put air in the tires. The real threat to democracy comes from an unelected Court with unlimited authority to make its own law.
Whoa, cried the Court’s defenders – there ARE no limits to the Court’s authority. Otherwise there is only chaos. Today we criticize – what happens tomorrow?
This is not entirely a left-versus-right debate, although the pro and con arguments are at root political. My American mind is accustomed to both sides often severely criticizing American Supreme Court decisions without worrying that the sky will fall. The argument over judicial activism is hardly a new one. The Constitution determines through separation of powers where the authority of each branch of government lies. The Supreme Court may do a, b and c but not d.
Ay, there’s the rub – though one was intended, Israel lacks a very much needed constitution. Her Basic Law remains, not unlike the initial Articles of Confederation remained until young democratic America grasped the critical need for unity and stability. Young democratic Israel, under constant internal and external existential threat, has not yet determined to move past that treacherous formative stage.
One may take serious exception to ill-advised judicial activism usurping freely elected political authority, but one must acknowledge that this Supreme Court constitutes the only civil institution towards which nearly all Israelis bow. Leveling criticism in its direction does in fact entail risk. Americans see similar sanctity in the Constitution. Hence America’s Court is not endangered by volatile free speech.
Israel’s is a very Supreme Court indeed. It will remain so until a significant super-majority agrees upon an enduring and overriding Law of the Land.  


Related Tags
debate