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The new head of the Israel Bar Association Yori Geiron called this week for the appointment of a public committee to protect the independence of Israel's judicial system, most importantly that of the Supreme Court. He proposed that the committee be headed by the two immediate past presidents of the Supreme Court, Meir Shamgar and Aharon Barak.
Geiron's call is one more in a series of rearguard actions mounted by the legal establishment in recent weeks to protect the constitutional revolution engineered by Aharon Barak from all efforts to limit the power of the Supreme Court. Under Barak's leadership, the Israeli Supreme Court became by far the most powerful in the world, even without benefit of a written constitution.
It is not the independence of the judiciary that Geiron, acting as Barak's shofar, seeks to preserve, but rather the power of the court. And by suggesting that Barak head a public committee on the matter, Geiron is, in effect, demanding that Barak continue to exercise full proprietorship over his constitutional revolution even in retirement.
AN INDEPENDENT judiciary is, of course, a requirement of any functioning democracy. That independence requires that judges be protected to the degree possible from all outside influences when rendering judicial decisions. The inability of the citizenry, legislature, or chief executive to remove a judge during his tenure in office, except for truly extraordinary misconduct, is the hallmark of that independence.
But an independent judiciary does not mean that the judicial system is completely independent of the other branches of government. The American constitutional system, for instance, is an elaborate system of checks and balances between the executive, legislative, and judicial branches. The independence of the federal judiciary is assured by lifetime tenure for justices, who can only be removed through a very rare impeachment process. But the president appoints judges, and the legislature confirms those appointments.
The appointment power is but one example of the intricate interaction of the branches. The power of Congress, within certain constitutional constraints - to set limits on the jurisdiction of the federal courts and its ability to enact legislation clarifying its intent when it determines that the courts have misinterpreted the intent of previous legislation - are two other examples.
As Richard Posner, one of America's most respected judges and legal scholars, has shown in a recent review in The New Republic of Barak's A Judge in a Democracy , 'separation of powers' means something very different in the Israeli - i.e., Barak's - legal lexicon than it does in traditional democratic theory. "What [Barak] means by separation of powers," writes Posner, "is that the executive and legislative branches are to have no degree of control over the judicial branch."
THE POWER of the judiciary, in Barak's conception, is unchecked by the other branches. In his new book, Barak observes that no branch of government "should judge itself." But his strictures apply only to the executive and legislative branches, as Posner notes, not to the judiciary. That conception of judicial independence no doubt underlies Barak's fervent defense of Israel's highly anomalous judicial selection process, in which sitting justices of the Supreme Court effectively control the selection of their colleagues and successors.
For Barak, the judiciary, or at least the Supreme Court, reigns truly supreme over the other branches. Posner points out that the fundamental distinction between a judge's interpretations of statutes and his own policy preferences scarcely troubles Barak at all. In the Israeli system, Barak notes proudly, that which appears unreasonable to the justices of the Supreme Court is by definition illegal.
Barak's idiosyncratic definition of judicial independence is but a subset of the inversion of the term "democracy" itself that underlies his entire constitutional revolution. The textbook definition of democracy as a system of government in which the elected representatives of the citizenry are responsible for legislating and executing laws plays only a minor role in his conception of democracy. For him the accountability of elected officials to the citizenry is "formal democracy" - one might say mere formal democracy.
BUT OF FAR greater importance in Barak's eyes is what he terms "substantive democracy," which includes all sorts of "human rights." Those rights are by no means limited to those implied by "formal democracy" - e.g., freedom of thought and political speech, freedom of the press, the right to petition the government. Nor are they even limited to those enumerated in traditional legal materials, most notably statutes or constitutions. Posner notes how little Barak and his acolytes on the Court rely on such materials.
Relying on the broad terminology of the Basic Laws, Barak claims for judges the power to continually inject new fundamental principles or rights into the legal system. In doing so, he is giving effect to the people's most cherished norms and standards, Barak argues. To which Robert Bork, who, with Posner concurring, labels Barak the world record holder in "judicial hubris," asks the simple question: Why didn't the people simply enact the norms into statutes?
The answer, it turns out, is that for Barak the "people" who count are not the citizens of the country, but only those citizens who hold enlightened views - academics, lawyers, judges, ultimately Barak himself. And thus in the name of "substantive democracy" does the judge become king.
IN A COMICAL demonstration of this almost Orwellian redefinition of democracy, Professor Frances Raday lauded Barak (and defended him from Posner's critique) in these pages ("Defend the Court" June 6, 2007) for reading into the Basic Laws a variety of "rights" that were explicitly rejected by the Knesset, on the grounds that the Knesset is filled with all sorts of religious and right-wing types.
Alexander Hamilton, in the Federalist Papers, famously described the judiciary as "the least dangerous branch," because it possessed neither the power of the purse nor sword. Under Barak and subsequently, the Israeli Supreme Court has exercised both. To place Aharon Barak at the head of a public committee to protect the power of the Supreme Court is to charge the fox with guarding the henhouse that Israeli democracy has become.
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