In the first part of this note, we discussed one aspect of the anti-democratic legacy which has been left to us by former Supreme Court president Aharon Barak – namely, the idea that the court was superior to all other branches of the government and could therefore nullify legislation of the Knesset. We further expressed hope that the new government in general, and the new Justice Minister in particular, would take action to overturn this impingement on one of the basic rules of democracy: the separation of powers. In this note, we discuss two other anti-democratic elements of the Barak legacy: the abolishment of the doctrines of standing and justiciability, which require urgent correction.
In the United States, courts achieve their authority from Article III of the Constitution which empowers them to decide “cases and controversies.”
In order for a plaintiff or petitioner to seek relief in court he/ she must be part of a “case” or “controversy.”
He or she must have a direct interest in the issue, and must show “imminent” harm if the situation is not resolved. This direct interest is called “standing.” As the Supreme Court has said in a famous decision known as Allen vs. Wright: “The requirement that a plaintiff have standing to sue... is built on the idea of separation of powers. Federal courts may exercise power only in the last resort, and as a necessity.”
Based on this rule of “standing,” courts in the US may not issue advisory opinions, nor may citizens, politicians or interest groups challenge governmental action unless they are directly affected.
While the idea of “standing” does not have a constitutional basis in Israel, it is founded on one of the basic notions of democracy, the separation of powers, and further finds support in simple logic. If a person is not directly affected by governmental action, then he cannot challenge it. To hold otherwise would result in two absurd results: the courts would be overwhelmed with petitions by citizens, politicians and interest groups seeking media exposure (perhaps even more than redress); and the courts would be empowered to put themselves in the shoes of the other branches of the government and reconsider their decisions. In effect, the judges, who are not elected by the public, would be put in place of democratically elected officials and their appointees.
Nonetheless, in the Barak era, this is precisely what happened.
The Supreme Court routinely hears petitions by citizens, politicians and interest groups who seek to harass the government by challenging its actions, without any “direct” or “imminent” relation to the situation in question. The situation has become so absurd that one can now predict the Supreme Court docket as it grows from day to day.
If the attorney general decides not to prosecute a public figure, a representative of the opposing political party will challenge this in the court. If the prime minister appoints a political figure as a minister, an opponent will find ostensible grounds to challenge this as well. Not only does this violate the separation of powers, the basic elements of democracy and the rule of “standing,” but it also plays right into the hands of politically-motivated government attorneys who then tell the court that they cannot justify the actions of the government.
Thus, by opening the doors of the court essentially to all comers, under the guise of broadening the democracy of the court, in fact the court has undermined the democratic basis of our judicial system.
The second anti-democratic element of the Barak legacy is the elimination of the condition of “justiciability” as a prerequisite to the court’s consideration of a petition.
In most democratic countries, the court will not consider every type of question brought before it, even if the petitioner is directly or imminently affected by a situation.
Not only must the petitioner be the proper person to bring the issue before the court, but the issue itself must be of the type that the court is empowered to consider.
Thus, for example, a court should not consider “political questions,” questions which by their nature are decided by the political (legislative and executive) branches of the government – such as matters of public policy, governmental spending, defense activity, the making of war, relations with foreign governments, treaty making, etc.
Not so in Israel. During the Barak era, the Supreme Court of Israel adopted a policy to hear essentially every type of question brought before it. In the name of democracy, the court once again undermined the democratic nature of our political system. The legislature was no longer sovereign to legislate and the executive was no longer empowered to execute. The Damoclean sword of the Supreme Court hung over the heads of the other branches of government and their agencies. The judges took on the robes of economists and examined questions of spending priorities, they became physicians and examined medical issues, they became clerics and examined religious issues – all in the name of democracy, while in fact plowing our democracy into the ground.
In explaining this policy, justice Barak coined his well-known, arrogant anti-democratic phrase: “hakol shafit” – everything is justiciable.
Stated in other words, I know better than anyone else. I can tell all the other branches of government and their agencies what to do. There is no area in which I am not expert! Perhaps the most articulate challenge to this approach came from the late justice Alon, who in a public debate once asked Barak. “Is it justiciable whether I love my wife?” The elimination of the justiciability doctrine was also accompanied by another pithy Barak remark: “melo chol haaretz mishpat” – the entire world is filled with law. What Barak and his supporters knew quite well was that this phrase was not an invention of his, but was a takeoff on a phrase from the prophet Isaiah: “melo chol haaretz kevodo” – the entire world is filled with God’s honor (divine presence). This notion is expanded by the Zohar to one of the basic theological/philosophical tenets of Judaism: “let atar panui mineh” – there is no place in the world where God’s presence does not exist. When Barak transformed this concept to relate to law rather than God, he was essentially saying that law had replaced God as the foundation for the Jewish state.
This was not only a slap in the face to the traditional community in Israel, but also represented a blatant rejection of the legal principle that Israel is a Jewish-democratic state.
The agenda which the Supreme Court has left the new government and legislature is long but crucial. In order to restore the democratic foundations of this country, we must reject, correct and annul the anti-democratic legacy which the court has left us – the sooner the better.
The author is an international attorney based in Tel Aviv.