As I See It: Israeli judges should be put back in their box

The controversy over judicial activism has echoes beyond Israel, particularly in Britain: who in a democracy should have the ultimate whip hand, politicians or the judiciary?

By
June 7, 2019 07:38
Justice Minister Ayelet Shaked, President Reuven Rivlin, and Chief Justice Esther Hayut

Justice Minister Ayelet Shaked, President Reuven Rivlin, Chief Justice Esther Hayut, and Judge Varda Wirth Livne, and new judge Sawsan al-Qasem, July 4, 2018.. (photo credit: GPO)

 
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Israel’s electoral crisis has put politics on hold. One important casualty is the attempt to curb the power of Israel’s Supreme Court and legal establishment.

This was the policy single mindedly pursued by outgoing justice minister Ayelet Shaked, who Prime Minister Benjamin Netanyahu sacked from her post this week after she lost her Knesset seat in last month’s election.
The controversy over judicial activism has echoes beyond Israel, particularly in Britain: who in a democracy should have the ultimate whip hand, politicians or the judiciary?


Israel has been transfixed by the proposed law that would give Netanyahu immunity from indictment on corruption charges being pursued by the attorney-general, Avichai Mandelblit.


Trying to stop his own indictment is indeed wrong, and whether Mandelblit’s behavior is part of a political vendetta is beside the point. A prime minister facing possible criminal charges does not take measures to exempt himself from that process. That is an abuse of his position.


However, this maneuver is being used opportunistically to depict moves to curb judicial activism as an onslaught on Israeli democracy.


The hinge is a proposed “override” clause which would enable the Knesset to re-legislate laws struck down by the courts. This has been painted as yet another tactic to help Netanyahu escape prosecution, by enabling the Knesset to restore an immunity law if such a law was passed and if the Supreme Court then struck it down.


But it was none other than former supreme court president Aharon Barak – the key mover behind the eruption of judicial activism – who in 1993 himself promised just such an override (copying the same measure in Canada) over an issue to do with kosher meat which threatened to topple the government of Yitzhak Rabin.


This override was passed by the Knesset as an amendment to the basic law on freedom of business. Yet the current proposal to extend it to other basic laws has been hysterically denounced as the end of democracy as we know it.


That’s because it is being used as an excuse to push back against Shaked’s agenda of shifting power back from judges to politicians. From her viewpoint, laws passed by elected politicians should not be struck down by the courts in the first place.


A very similar argument is currently being made in the BBC’s prestigious Reith Lectures, being given in Britain by the former Supreme Court judge, Lord Sumption, on the place of law in public life.


The public, he says, has two means of protection against any abuse by a democratic government of its majority power. One is through political parties that represent a broad spectrum within themselves (in Israel, of course, it is through a real coalition); and the other is through judges interpreting the law.


Judges have always made law particularly in Britain, where the common law has developed organically through centuries of judicial decisions.


Over the past three decades, however, the judges got too big for their boots. This started under the government of Margaret Thatcher, against whom the judges feared there was no effective political opposition. So they decided they would provide it instead.


This elision of law and politics was given rocket fuel by the development of international human rights law. In Britain, this gave judges the power to rule that acts of parliament were incompatible with the European Human Rights Convention, thus creating irresistible pressure on the government to change its policies to comply with the convention’s provisions.


This increasingly enraged the public, as terrorist suspects successfully resisted deportation or were given welfare benefits on the basis of their human right to family life.


Judges now waded in on issue after issue where there was no national consensus, arbitrating between competing rights on the basis of their own subjective and contestable view of the world.


As Sumption has said: “It is the proper function of the courts to stop governments exceeding or abusing their legal powers. But allowing judges to circumvent parliamentary legislation or review policy decisions for which ministers are answerable to parliament confers vast discretionary power on a body of people who are not constitutionally accountable to anyone for what they do.”


This is essentially the problem that Shaked was attempting to tackle. Ever since the 1990s when Aharon Barak headed the Supreme Court, the Israeli courts have plunged more deeply into judicial activism than even their British counterparts.


Barak wanted to turn the court into the most powerful branch of government; and because his allies controlled the committee that appointed the judges and dominated the legal establishment, he did so, greatly expanding the definition of cases that could be brought to court by granting “standing” to anyone contesting pretty well anything the government had done. The legal bar of “unreasonable” actions was lowered to include any policy of which the judges disapproved.
When the Basic Law: Human Dignity and Freedom was passed in 1992, Barak exaggerated its constitutional significance.


Israel doesn’t have a written constitution. Its basic laws state that Knesset legislation cannot contradict them. That does not give the courts the power to strike down such legislation. Yet that’s what the Israeli Supreme Court has been doing, striking down 18 such laws since 1992.
Another development has been particularly sinister.


IN 1993, Rabin was taken to court after he ignored advice by the attorney-general to fire two government members who had been indicted. The Supreme Court ruled that Rabin had to obey the attorney-general – even if he got the law wrong – because he interpreted the law on behalf of the government.


Since then, ministers have legal advisers who are subordinate to the attorney-general to make sure ministers don’t do anything the courts don’t like. If ministers are challenged in court, they will find themselves in the Orwellian predicament that their own legal advisers – their supposed champions – will in fact speak for the case against them.


To curb all these excesses, Shaked appointed “conservative” judges – i.e., those who actually adhere to the principles of justice and democracy. This has produced some startling developments.


Last January, communities near Gaza took the government to court to challenge its decision to transfer funds to the Hamas leadership. But a new Supreme Court justice, Alex Stein, threw their case out on the basis – contrary to Barak’s expansionist rulings – that the complainants had no “standing.” Stein ruled instead that “our government answers to the Knesset and the voters, not to us.”


In another case before Stein, a government minister had refused to appoint to a committee a woman who had called for resistance to the army draft. The minister was taken to court, where his own legal adviser stated that he had exceeded his authority. To this Stein objected, and declared that the minister was entitled to a defense.


Cue horror among Israel’s judges. Democracy is under attack! they cry. British judges who identify passionately with the Israelis’ judicial activism have been offering them sympathy and support, agreeing in tones of dread that the judges are besieged and Israel’s rule of law is under threat.


This is because of their profound and sincere conviction that politicians cannot be trusted with democracy, and it’s up to the judges to save it. They don’t understand that the rule of law is not the same as rule by lawyers.


Sure, Israel’s political system is a joke (and Britain’s is disintegrating altogether). But it’s still the one way people can have their say over how they are governed and the laws that are passed; and so it has the ultimate democratic legitimacy.


Whoever ends up governing Israel, judicial reform should remain a priority. Judicial supremacism does not protect democracy; it usurps it. The Israeli judges should be put back in their box.


Melanie Philips is a columnist for The Times (UK).

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