Don't blame Aharon Barak

In practice, only the Supreme Court is willing to make the tough decisions.

December 14, 2005 21:25
aharon barak 298.88

aharon barak 298.88. (photo credit: Ariel Jerozolimski)


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'Human dignity" is an exhilarating concept, something on a par with motherhood and apple pie in American folklore; or with "the everlasting Jewish people" in our own. "Money" is a much more mundane affair, often thought of in terms of "filthy lucre." Yet, it would be hard to think of any more important contributory factor to human dignity than money - or at least the possession of enough of it to make possible a dignified existence. Last week, a 6-1 majority of the High Court of Justice, headed by Chief Justice Aharon Barak, managed to separate between the two concepts in rejecting petitions by a number of social activist organizations to nullify budget cuts to the National Insurance Institute and other welfare funding. These cuts were a central aspect of finance minister Binyamin Netanyahu's 2003 Thatcherite economic policies. In an exquisite example of judicial hedging, the court ruled that under the 1992 Basic Law: Human Dignity and Freedom, the government could be required to pursue economic policies that would enable all Israelis to lead dignified lives. But the petitioners' failure to present hard facts and figures - on the personal budgets of individual needy cases - made it impossible for the court to nullify the legislation and related administrative orders comprising the government's economic policies. Justice Edmond Levy was the sole minority voice holding that the court did have sufficient data to enable it to nullify the decisions which cut deeply into the living standards of over 100,000 families. The meaning of the majority decision was that the court rejected the petitions, but the petitioners could - at another opportunity - present the missing facts as a basis for reconsideration. Barak has frequently referred to the 1992 adoption of the Basic Law: Human Dignity, and another Basic Law on the freedom of employment, as a "constitutional revolution" which turned the basic laws - adopted since the early 1950s - into a real constitution. This constitution empowers the High Court to nullify Knesset legislation. He and the court have come in for vociferous criticism in the few cases in which they actually made use of that power. Specifically, the haredi as well as Zionist-religious parties counterattacked. They demanded limitation on the High Court's powers, and on its personal makeup. Barak, who has been most identified with broadening both the concepts of "legal standing" and the "justiciability" of nearly all issues, has lately become careful about taking steps that could be construed as elitist challenging the popularly elected Knesset. He has admitted that the 1992 "constitutional revolution" was "incomplete" in the absence of a basic law on social rights. Several legislative proposals for a basic law in this sphere have since been proposed, but they have languished in committee. There is little chance of their adoption because Shas, the haredi parties and the NRP have come to believe that they were duped in the case of the 1992 basic laws, and have no intention of repeating that mistake. CRITICS, AND even some supporters of Barak, argue that many issues are basically so political that they should be decided by the Knesset or government rather than by the courts. Which is fine as far as the theory goes; but the reality in Israel is of a dysfunctional Knesset, that goes to great lengths to avoid difficult decisions, and a quasi-tyrannical executive that ignores legislative oversight. Two examples of this parlous state of affairs should suffice. In 2003, the present Knesset was elected in a landslide victory for Prime Minister Ariel Sharon and the Likud. Nowhere in that campaign was there any public discussion of a revamping of economic policy. Even Netanyahu's appointment by Sharon as finance minister came as a surprise - even to Netanyahu. And the Thatcherite economic policies that Netanyahu pushed through were his own; Sharon backed them in the hope that they would be Netanyahu's undoing. The argument goes that in democracies the people have a chance to rule on key policies by voting for or against their champions. But that is not how it works in reality. We are now well along in an election campaign and Bibi's anti-poor economic policies barely figure in it, except for the ludicrous posturing of various candidates as to who grew up poorest - as opposed to Bibi's supposedly "silver spoon" upbringing. FOR YEARS, Barak's High Court refrained from intervening in the Knesset's failure to deal with the scandalous exemption of yeshiva students from military service. Finally, it forced the Knesset to take some action, and the Tal Commission recommendations were born. Three years later we know that those recommendations are a farce. While judicial intervention in such issues does run the risk of triggering political retaliations against the very existence of the High Court, what choice is there? The real solution is to vote better people into the Knesset and reform its functioning and its relations with the executive branch. In the meantime, the best we can hope for is the sort of hedging we got from the High Court on the economic safety-net issue.

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