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Thursday, May 18, 2006

Judicial tyranny threatens Israel's security

On Sunday, I told you all about the Supreme Court decision that barely upheld the provisions of the citizenship law that restrict the ability of 'Palestinians' to settle in Israel solely by virtue of being married to Israeli (Arab) citizens. On Monday, I told you that if the law really is what Chief Justice Barak claims it is, then the law needs to be changed.

Today, HaAretz reports on an email sent by Chief Justice Barak:
Supreme Court President Aharon Barak wrote in a private letter this week that even though his opinion was voted down in Sunday's High Court of Justice ruling upholding a ban on family unification, most of the other justices agree with his position that the law violates constitutional rights and is not proportional.

He said they also agreed that if the Knesset were to extend the validity of the Citizenship Law in its current format, the court would apparently overturn it.

"As you can see, technically, my view lost, but in substance, there is a very solid majority to my view that the Israeli member of a family has a constitutional right to family unification in Israel with a foreign spouse, and that the statute is discriminatory," Barak wrote Monday in an email that has reached Haaretz. "I also have a bare majority that the statute is not proportional, and therefore, unconstitutional." Barak sent the email to a friend of his, a law professor at Yale University.
The Jerusalem Post's Evelyn Gordon, a long time critic of the court, recognizes that six judges believe that the citizenship law is unconstitutional - and calls for reforming the court's selection process:

Gordon notes that in the court's 6-5 ruling upholding the law, the only reason Justice Edmond Levy sided with the majority in declining to annul the law was that since it expires imminently, he considered it sufficient to inform the Knesset that absent major changes, the court will overturn it next time.

In other words, says Gordon, "a majority of the court declared that the government has no right to bar immigration from hostile areas during wartime - something almost every other Western democracy does, and a key element of the government's proposed comprehensive immigration bill - because the individual's "right" to live with a non-Israeli spouse in Israel takes precedence over the state's right to protect seven million other citizens against terrorism."

Moreover, having accorded this "right" - which appears nowhere in any Knesset legislation - supremacy over laws actually passed by the Knesset, the justices are equally unlikely to approve the other elements of the proposed immigration reform, which is pending in the Knesset, and which calls for bringing Israel's policy into line with the European trend by imposing various restrictions on immigration through marriage, including quotas, age restrictions and means tests.

Gordon continues:

Justice Minister Haim Ramon's proposed solution is to enact the reform not as ordinary legislation, but as a Basic Law. This, according to the court's own rulings, would grant it constitutional status, thereby barring the justices from declaring it unconstitutional. Yet in fact, even this might not suffice - because, in a breathtaking pronouncement in last week's ruling on the Tal Law, Supreme Court President Aharon Barak asserted that the court could even overturn a Basic Law if the justices deemed it contrary to Israel's Jewish and democratic character.

This is a power grab of gargantuan proportions. After all, the entire justification for the court's "right" to overturn Knesset legislation was its assertion that the Basic Laws had constitutional status, and ordinary legislation that contradicted them was therefore unconstitutional. That assertion was dubious in itself, given that the Basic Laws underwent no constitutional ratification process and were approved by a mere quarter of the Knesset.

YET NOW, Barak has declared that the court is even authorized to overrule the "constitution"!

Gordon proposes to solve the problem by appointing justices to the court who will favor less judicial intervention generally and who will uphold the immigration law currently in process in the Knesset. She notes that four of the court's fourteen seats are now vacant and that a fifth will open up in August with Barak's retirement. But filling those seats with judges who will favor less judicial intervention is easier said than done due to the court's selection process. Today, the judges essentially select their own replacements:

Currently, new justices are chosen by a nine-member panel consisting of two ministers, two Knesset members (one coalition and one opposition), two Bar Association representatives and three sitting justices, including the court president. This structure would inevitably let the justices dominate the process even without the ironclad tradition whereby other panel members defer to them: The justices, chosen by the court president, consistently follow his lead; the elected officials are divided, coalition-opposition; and the Bar representatives are reluctant to antagonize justices who will decide their future cases.

The result is that never has a new justice been chosen over the sitting justices' objections, and only rarely have the justices' candidates been rejected.

Gordon goes on to argue that the balance of powers is too heavily tilted towards the court and that the selection process needs to be changed so that the other branches of government will select the justices.

Gordon's proposal is all well and good. And if the Knesset passes legislation that implements Gordon's recommendations, we will all be better off. But it does not solve the immediate problem of the family reunification law. The current law expires on June 30. HaAretz points out that if a challenge to an extension of the law or to a new law is filed in August, Barak would still sit on the panel that would hear the case. That is a problem that should concern us all.


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