Civil Fights: The Third World according to Aharon Barak

The former top justice wins this year's chutzpah award - and it's still only January.

By EVELYN GORDON
aharon barak 224.88 (photo credit: Courtesy)
aharon barak 224.88
(photo credit: Courtesy)
It is only January, but former Supreme Court president Aharon Barak already has the chutzpah prize for 2008 sewn up. From anyone else, his statements to Israel Radio on Sunday could have been dismissed as ignorance. But for Barak to declare that Justice Minister Daniel Friedmann's proposed reforms "could turn Israel into a third-world country" is the height of chutzpah - because the former chief justice is sufficiently familiar with other legal systems to know that in fact, Friedmann's proposals would finally bring Israel into line with first-world norms. Friedmann has two main goals, of which the first is revamping the judicial appointment process. Currently, Israel is virtually the only Western democracy whose highest court is not appointed by politicians: Supreme Court justices are chosen by a nine-member committee comprised of two cabinet ministers, chosen by the government; one coalition and one opposition MK, chosen by the Knesset; three sitting justices, chosen by the Supreme Court president; and two lawyers, chosen by the Bar Association. Thus politicians occupy only four of the nine seats, and the government controls only three. The legal establishment, with five seats, dominates the panel. FRIEDMANN wants to give the political system a majority. He proposes an 11-member panel with two ministers, two MKs and two Bar Association representatives, just like today, but only two Supreme Court justices rather than three. The remaining three members would be a retired district court judge, chosen by the government; a public figure from any field except law, also chosen by the government; and an academic from a field other than law, appointed by the council of university presidents. Barak claims this proposal would politicize the court and "set Israeli democracy back several years." Yet by the standards of other western democracies, Friedmann's plan is still remarkably nonpolitical. Other western democracies give the legal establishment no role in choosing Supreme Court justices; Friedmann would give jurists five of the 11 seats. Other Western democracies do not involve non-politicians in the process; under Friedmann's proposal, seven of 11 committee members would be non-politicians. And while in most Western democracies, the government dominates the process (either directly or via its parliamentary majority), Friedmann's proposal leaves the government in the minority, with only five seats; the sixth "political" seat belongs to the opposition. In America, by contrast, the president appoints justices and the Senate confirms them. In Germany, parliament's upper and lower houses each select half the justices. In Austria, the government and parliament each appoint half. In France, the president appoints nine of the 15 justices, while the heads of the two houses of parliament appoint three each. In Switzerland, parliament selects the justices; in Sweden, the cabinet does. In Australia, Canada, Belgium and Norway, justices are appointed by the monarch but either nominated or approved by the cabinet. In Japan, the cabinet appoints the justices and voters must ratify its choices in the next election. THIS POLITICAL domination of the process is no accident. Democracy's fundamental premise is that the people should choose their rulers, and since supreme courts must occasionally rule on major political and social issues, this includes justices. Moreover, since different judges interpret the law differently (which is why many verdicts are split decisions), supreme courts should properly reflect a spectrum of opinion. Democratic selection processes achieve this goal, since governments change frequently, and different governments tend to appoint candidates with different judicial worldviews. A process dominated by the judiciary, in contrast, perpetuates ideological uniformity, since justices, being only human, naturally prefer candidates who share their own views. And that has a very dangerous consequence: Certain sectors of the public may feel permanently disenfranchised, because a key branch of government is effectively closed to people with their views. America, Germany, France, Austria, Switzerland, Australia, Canada, Belgium, Sweden, Norway and Japan are hardly third-world countries. So how exactly would making Israel's judicial appointment system more like theirs reduce Israel from first-world to third-world status? Fortunately for Barak, his interviewer neglected to ask. FRIEDMANN'S second goal, equally anathema to Barak, is limiting judicial review, both by permitting Knesset overrides of Supreme Court decisions and by restricting justiciability, or what issues the court can hear. Yet limitations on judicial review are also hardly "third-world." Holland, for instance, bans judicial review entirely, while Switzerland prohibits judicial review of federal legislation. Would anyone call Holland and Switzerland third-world countries? In Britain, which has no constitution, the high court can declare laws incompatible with the European Convention on Human Rights, but they remain in force unless and until parliament overturns them. In New Zealand, laws that the court declares unconstitutional also remain in force unless and until parliament repeals them. Canada's Supreme Court can annul legislation, but parliament can override it and reinstate the law. Are Britain, New Zealand and Canada third-world countries? Moreover, Israel's court is unique in the democratic world in holding, to quote Barak, that "everything is justiciable." Elsewhere in the West, it is understood that many issues are properly the province of elected representatives - both because giving the people a say in key decisions is the essence of democracy, and because elected officials representing different sectors are better suited to crafting workable compromises among these groups' competing interests than are unelected justices who represent nobody but themselves. Israel's court, however, claims the right to decide numerous issues that other Western courts would not touch: immigration and citizenship policies (from defining who is a Jew, and thereby entitled to automatic citizenship, to deciding whether Israel may deny entry to enemy nationals), budgetary priorities (it has, for instance, asserted the right to set minimum welfare payments and add new treatments to the national health insurance plan), sensitive family matters (from recognizing gay couples to criminalizing spanking), and even military tactics during wartime (such as targeted killings of terrorists). Far from turning Israel into a third-world country, Friedmann's reforms would finally make Israel a full-fledged first-world democracy - one where major decisions are made by the people's elected representatives rather than an unelected court. But that, of course, is precisely Barak's objection: Like any dictator, he dislikes sharing power.