Rubinstein: Supreme Court must develop self-restraint

Court has acquired power that doesn't exist in any democracy, renowned professor tells Post.

By HAVIV RETTIG GUR
amnon rubinstein 298.88 (photo credit: Ariel Jerozolimski)
amnon rubinstein 298.88
(photo credit: Ariel Jerozolimski)
"The Supreme Court has acquired the widest possible power of judicial review, the likes of which don't exist in any democracy," renowned constitutional thinker and former Interdisciplinary Center Herzliya president Prof. Amnon Rubinstein told The Jerusalem Post on Monday. "It arrived at this power by abolishing the rules of standing, which limit who can approach the court on constitutional issues; by limiting the concept of non-justiceability to specific cases; and by holding that the court can rule an act [of government] unreasonable and nullify it." Rubinstein, who is credited with authoring the proto-constitutional Basic Laws of 1992, said the court's role has largely been for the good. "The Supreme Court played a crucial role in the life of the country by making Israeli democracy liberal, especially until 1992. "Up to that year, the Knesset had failed to entrench human rights in law. It was an invaluable intervention of the court to uphold civil rights and liberties." But, "since 1992, when the Knesset finally decided through a long process of inter-party negotiations to pass the Basic Law: Human Dignity and Liberty, it's a different ballgame," in which "the court should have exercised self-restraint." The court's broad power "didn't create major political problems as long as it was exercised in defense of classical human rights, such as the freedom of speech. But in the past few years the court has begun to apply wide judicial review to issues of security and the Palestinians, such as the right of Palestinians to enter the country under the guise of family reunions" by nearly challenging a law limiting such entries that had wide support in the Knesset. At the same time, however, Rubinstein is against legislative intervention in the power of the Supreme Court. "The best solution is not the statutory limiting of the power of the court, which would create a precedent of restricting the Supreme Court's legitimate exercise of power." Instead, the court must develop "a culture of self-restraint."