Defend the court

The claim that the Supreme Court is overly activist is based on a thin view of democracy.

supreme court 298.88 (photo credit: Ariel Jerozolimski [file])
supreme court 298.88
(photo credit: Ariel Jerozolimski [file])
Judge Richard Posner has added his voice from America to critics in Israel, notable among them Justice Minister Daniel Friedmann, ostensibly to protect democracy against the evils of judicial activism. Posner, in a recent article in The New Republic, accuses the Supreme Court under the (former) presidency of Aharon Barak of judicial hubris. Posner alleges that the court improperly gave itself the power of judicial review. This charge is unfounded. It was the Knesset that, in the 1992 Basic Laws, expressly imposed limitations on legislative power to violate human rights, inaugurating the "constitutional revolution" - so labelled by then Justice Minister Dan Meridor - and not the alleged megalomania of the Supreme Court. Furthermore, Posner's claim that Barak has held that the Knesset cannot repeal Basic Laws is quite baseless. It can do so by simple majority. During the 15 years since their enactment, the Knesset has not used its power to repeal the Basic Laws. So Posner's claim of an original constitutional deficit, because only a quarter of MKs voted for these laws, is surely trumped by behavioral ratification. Posner accuses the court of creating a democratic deficit by usurping the power of the legislature. In this, there is apparent constitutional logic: democracy is the will of the people vested in their elected representatives. THIS VIEW is, however, purist. Its thin, not to say anorectic version of democracy fails to take into account two aspects of democracy that require judicial review. The first is the tendency of power to corrupt, and hence the need for institutional checks and balances. The second is the understanding that democracy is not only the will of the majority but also guardian of the human rights of the minority and of the individual. Israel's Supreme Court is central in providing institutional checks and balances not because of activism but because of context. Israel's political infrastructure is less stable than in other OECD democracies, and corruption is higher. According to World Bank governance indicators, Israel is in the 10th-25th percentile for both stability and non-violence, as compared with the OECD average, which is in the 75th-90th percentile. Israel's corruption index shows deterioration since 1998; and from an average position among OECD countries has fallen beneath the OECD range. Posner criticizes Supreme Court decisions invalidating appointments of government ministers or civil service officials against whom criminal proceedings have been initiated as improper intervention in the affairs of government. But the question is: Where should the blame for this judicial policy should be focused? Should it be on the excesses of the Supreme Court? Or should it be on the governmental failures made evident by the comprehensive data, even though not proven regarding individuals prior to conviction? AS FOR human rights, Israel's court is in a uniquely difficult position. The rights to equality, freedom of religion, conscience and expression are not expressly included in the Basic Law: Human Dignity and Liberty. Importantly, the reason is pressure from the (minority!) religious lobby in coalition governments, which regards Jewish halachic law as taking precedence over international human rights. Under the rubric of human dignity, the Supreme Court has accorded the omitted rights recognition, establishing the rights to equality of Arabs, women, homosexuals and lesbians, to freedom of expression and, in a far more limited way, to religious pluralism and freedom of conscience for the secular. Is this an excess of judicial activism? Can human dignity and liberty be applied in the modern context without the right to equality and freedom of expression? After all, Posner himself concedes that the Basic Laws provide an "adequate textual basis, even in American terms" for prohibition of discrimination against homosexuals and Israel's Arab citizens. In doing so, he concedes the whole. Having come thus far, Posner surely cannot object to the court's insistence on equality for women and recognition of freedom of expression, conscience and religious pluralism under the same constitutional construction. AS REGARDS Palestinians in the territories, I would argue, unlike Posner, that the Supreme Court has been an escape valve for pressures that have threatened much greater damage to Israel's democracy than any that might be occasioned by the court's exercise of jurisdiction. The 40-year occupation of Palestinian territories presents a serious challenge to Israeli democracy. Justice Shamgar decided, prior to the Barak era, that Palestinians from the territories could petition the court. This jurisdiction has been subjected to opposing criticisms: both for illegitimate activism and for legitimizing the occupation without providing adequate human rights protection. Even if the court does not "get it right," the ever-present potential of judicial review has imposed welcome restraints, through its effect on executive and military policy. Posner takes issue with decisions such as the court's review of the positioning of the separation barrier, based on Israel's international law obligations, to minimize the impact on Palestinian inhabitants' access to agricultural property, health services and education. His contention is surprising. The US Supreme Court's 2004 decision allowing legal challenges by foreign nationals captured abroad to their detention at Guantanamo Bay indicates that the Supreme Court is perhaps not as out of line with US constitutional thinking as Posner would have us think. THE CLAIM has been made, more especially by Prof. Ruth Gavison, that the Supreme Court puts itself in danger by its excess of intervention in the democratic decision-making process. However, Israel's Supreme Court is in danger not because of its judicial activism but because of the power of its enemies. For over two decades, the court has been under partisan attack from the religious establishment, nationalist politicians and settlers and, on occasion, public figures under police investigation. Those eminent academics who inveigh against the exercise of supervisory power by Israel's Supreme Court would do well to consider the alternatives before they, unwittingly and certainly on the basis of a different agenda, aid these powerful opponents in demolishing a properly functioning democratic institution in Israel. The writer, a law professor, is director of the Concord Center for Integration of International Law in Israel at the College of Management in Rishon Lezion, and professor emeritus of the Hebrew University in Jerusalem.