A too-political judiciary

If MKs refuse to exercise their responsibility, how can they complain about the court filling the vacuum?

By EVELYN GORDON
supreme court 298.88 (photo credit: Ariel Jerozolimski [file])
supreme court 298.88
(photo credit: Ariel Jerozolimski [file])
The most sensible comment on last week's controversial High Court of Justice rulings came from Knesset Constitution Committee Chairman Menachem Ben-Sasson. Responding to Knesset members' outrage over the court's decision to overturn part of the "Intifada Law" - thereby allowing (some) Palestinians to sue Israel for damages incurred in a war that they themselves launched - Ben-Sasson said that he was "astonished by the uproar," since "it is the MKs' responsibility to determine the relationship among the branches of government." So if MKs refuse to exercise this responsibility, how can they complain about the court filling the vacuum? MKs typically advance two reasons for their reluctance to act: Curbing the court would be "undemocratic," because a strong Supreme Court is vital to democracy, and it would undermine "the rule of law," by demonstrating legislative contempt for the law's highest arbiter. Both arguments, however, are demonstrably false. While courts are unarguably vital to democracy, the judiciary is merely one of three branches of government, all of which are supposed to be circumscribed by checks and balances to ensure that no one branch accumulates excessive power. For this reason, almost all democracies impose curbs on their Supreme Court, just as they do on their executive and legislature: Otherwise, the unelected court could easily come to dominate the two elected branches. Indeed, the complete absence of curbs on Israel's Supreme Court has no parallel in the democratic world. Thus rectifying this situation, far from being undemocratic, would bolster democracy by restoring a proper balance among the three branches of government. This would require legislation on some or all of the following issues:
  • Standing. Many Supreme Courts will hear a case only if the petitioner has a direct, personal interest in it. In those countries, last week's ruling on the legality of targeted killings would never have been issued, as the petition would never have been heard: It was filed by two nonprofit organizations, neither of which is directly affected by this policy. Israel's court, however, recognizes no limitations on standing: It allows anyone to petition the court on any issue, regardless of whether it personally affects him.
  • Justiciability. Most Supreme Courts consider certain issues (such as foreign, defense and budgetary policy) to be the exclusive province of the elected branches. Consequently, such cases cannot even be heard. Israel's court, however, holds that everything is justiciable. It has therefore ruled on numerous issues that courts elsewhere would not touch - from the size of welfare allowances to the army's conduct of battles even as the fighting rages.
  • Overturning legislation. Some democracies restrict the court's right to overturn parliamentary legislation, either by making such rulings merely advisory (as in Britain) or, more commonly, by allowing legislatures to override court decisions and reinstate overturned laws.
  • Judicial appointments. In other democracies, Supreme Court justices are appointed by the legislature, the executive, or both. This ensures a spectrum of judicial opinion - particularly on the crucial question of activism versus restraint - since different parties typically appoint justices with different views. In Israel, however, sitting justices effectively select their own successors, with the elected branches of government having only a minority vote. Consequently, Israel's court is monolithically activist, as the justices routinely veto candidates who advocate restraint.
  • Reasonability. Israel is also virtually unique in allowing its court to overturn government policies not because they contradict the law, but merely because the justices consider them "extremely unreasonable." Elsewhere, it is understood that whether a policy is "reasonable" is for the voters to decide.
  • Rights creation. The court frequently grants constitutional status to rights that not only fail to appear in any law, but were explicitly rejected by the Knesset. For instance, it decided that the Basic Law: Human Dignity and Freedom includes a right to a "minimum dignified existence" financed by welfare payments - a position that the Knesset has rejected no less than 15 times, including while legislating that particular law. Amendments are therefore needed, both to better define the rights actually conferred by law and to forbid judicial additions to this list. THE SECOND argument advanced against curbing the court is that this would somehow undermine the "rule of law." Again, this contains a kernel of truth: Respect for the law, and for the courts that enforce it, is indeed vital to any democracy. Yet the justices' own behavior has already undermined public trust in the court so badly that drastic reforms are essential to salvage it. According to last month's Peace Index survey, only 57 percent of Israelis still view the court's contribution to public life more positively than negatively. Granted, other government institutions scored worse. Nevertheless, this is a steep decline from the court's 85% approval rating a decade earlier. And this freefall will continue unless the court's behavior changes. Former chief justice Aharon Barak declared last month that "attacks on … the Supreme Court are a worthwhile and cheap price to pay for the achievement of the constitutional revolution," meaning the court's power to exercise judicial review over anything and everything. "The price of a decline in the Supreme Court's status … is as nothing compared to [this achievement]," he said. But Barak could not be more wrong. Faith in the courts is essential - because without it, a key nonviolent outlet for redressing grievances would be lost. Yet by relentlessly intervening in political controversies that should be left to the elected branches, and by doing so on dubious grounds such as "reasonability" or rights of its own invention, the court has made itself just another political actor, which can no more be trusted to judge impartially than any other politician. Even worse, its frequent overruling of the cabinet and Knesset has left large swathes of the public feeling that democracy itself is pointless - because even if they win an election, the court will thwart their political program. And nothing could be more devastating to either democracy or the rule of law than that. Therefore, it is precisely those who cherish these values who should be leading the charge to curb the court.