A Too-Political Judiciary, by Evelyn Gordon (Jerusalem Post)
Excerpts;
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.
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.