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Tuesday, February 27, 2007

New Justice Minister seeks to limit Supreme Court power to nullify laws

New Justice Minister Daniel Friedmann announced yesterday (Sunday) that he will introduce a law in the Knesset that will seek to limit the Supreme Court's power to use the Basic Law: Human Freedom and Dignity and the Basic Law: Freedom of Occupation to nullify laws passed by the Knesset. Israel has no constitution, and the Supreme Court under former Chief Justice Aharon Barak invented the right to nullify Knesset legislation under these two "basic laws" that require supermajorities for repeal, but that were in fact passed with only small numbers of MK's present (32-21 and 23-0 respectively; the Knesset has 120 members). The "basic laws" were originally intended to form the foundation for a constitution, but that has not happened.

According to the Jerusalem Post, two bills have already been prepared to reduce the Court's unfettered discretion to annul Knesset legislation. One, by Labor MK Ophir Pines-Paz (who actually supports the Court's power to nullify laws) would restrict the Court's ability to do nullify laws to cases heard by at least nine of the Court's nineteen justices. The other, by Israel Beiteinu MK and new Minister of Tourism Estherina Tartman, would void the Court's power to annul legislation. Under the Israeli system, the Knesset is purported to be the supreme law of the land, unlike the American system (and there's a reason why I'm using the American system - you'll see in a minute) where there is a balance of power between three co-equal branches, each of which has certain rights and powers and none of which is made supreme to the others.

Very few pundits have commented on these bills yet - either in the mainstream media or in the blogosphere. One who has is Jewlicious, whose comment made it into the Jerusalem Post's blogcentral. She gives an accounting of the current corruption in Israel, which is well worth reading and with which I mostly agree (I disagree with her accusation that Justice Minister Friedmann is acting out of a personal vendetta against the Court because of an unnamed protege who was not elevated to it (Ruth Gavison?)). But I cannot agree with her summary:
Once upon a time there was Zionism and it drove the leadership to act. While that remains true for a few, most politicians have become cynical caricatures of their predecessors. In fact, it is sadly becoming true that the Israeli government is becoming a corrupt caricature of a functioning democracy, if corruption is a barometer - more like a banana republic. Fortunately, there remain some people who are able and willing to investigate and challenge Israel's leaders, but the public cannot trust that its leadership will care about the welfare of the state instead of their own welfare. Even the IDF is beginning to stink a little and everyone is just hoping that the new chief of staff will be able to clean house and change the established and institutionalized weak spots.

It is to these folks that Daniel Friedmann wishes to leave the truly important decisions about Israeli society. Instead of leaving the final recourse regarding the fairness of laws to justices, who may not adhere to rules of impartiality perfectly, but at least try, and are immune from many of the pressures that exist for the politicians regularly, this man with the personal ax to grind, has determined that those people who have proven themselves corrupt, indecisive, ideologically inconsistent, opportunistic, swayed by influence and money and who are not even directly elected so that their actions face no serious consequence if they know how to play the game within their own party...that these people should be the first and last stop for all laws of the land. He believes that these people should decide instead of impartial jurists who have few such outside influences.

In the United States, the Supreme Court and the judiciary stand equal to the two other branches of government. It would be hard to claim that the US Supreme Court isn't independent and that its decisions regarding the constitutionality of laws aren't extraordinarily important and valued within society. It would also be hard to argue that the very finest legal minds are always the ones who make it to this court, since, as we all know, politics and timing play a critical role in who gets picked and who makes it in. Still, the importance of this institution is incalculable and I would argue that Israel's Supreme Court is no less important. Perhaps, in some ways, in light of the corruption and party system in Israeli politics, it is even more important to the stability and honor of Israeli democracy for it stands as the last line of defense for those who are not represented in the mainstream or who do not have power brokers who can negotiate with the politicians on their behalf. To those people and organizations, there is one address however, where they will receive a hearing and a fair ruling: Israel's Supreme Court.

Let's hope Daniel Friedmann fails in his attempt to change the system. I've seen an article in the Jerusalem Post covering this topic, although I'm sure others exist.
Allow me to list the reasons why any comparison of the Israeli Supreme Court with the Supreme Court of the United States fails miserably, and why I hope Friedmann will succeed in changing the system:

1. To be selected as a justice of the Supreme Court of the United States, one must be nominated by the President and confirmed by a two thirds majority of the Senate. Those are two strong checks against cronyism and poor legal scholarship. Remember Robert Bork (who has actually written a book that is critical of the manner in which Israeli Supreme Court justices are selected)? Clement Haynsworth? G. Harold Carswell?

To be selected as a justice of the Israeli Supreme Court, one has to be loved by the Chief Justice:
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.
2. In both the US and Israel, the Chief Justice sets the Court's agenda. But in the US, the Chief Justice has to go through the confirmation process I noted in item 1 (even if he is already a member of the Court!), while in Israel, the most senior justice on the Court automatically becomes the Chief Justice. This means that in Israel, the same cabal can impose its will upon the Court and the country for years to come, which is exactly what former Chief Justice Barak attempted to do.

3. In the United States, two key legal concepts called standing and justiciability are used to restrict the Court's ability to make laws. The concept of standing means that one may only bring a case before the Court if one is directly affected by it. To put that question into practical terms, it would mean that every time 'Peace Now' wanted to challenge a 'settlement' location as being on Arab land, it would need to find the Arab who claims ownership to the land and make him the plaintiff. Today, in Israel, no standing is required.

Justiciability says that there are certain cases (generally 'political questions') that the Court won't touch because they were within the purview of a different branch of the government. For example, earlier this year the Court took upon itself to pass judgment on whether the Winograd Commission was an appropriate forum to examine the failures of last summer's war. But the Court had no business examining the question at all without first concluding - as it did not - that the government had abused its discretion under the law establishing commissions of inquiry by not establishing one. In the United States, that case would have been barred at the courthouse door - the petition for certiorari (the petition that is filed with the US Supreme Court asking for a hearing) would have been denied.

The results of abolishing standing and justiciability have gotten the court involved in the following clearly political cases:
AND, JUST as Barak intended, the court is indeed now deciding virtually every major issue. It is determining the route of the separation fence, which may well define Israel's future borders; dictating immigration and citizenship policies (both by defining who is a Jew, and thereby entitled to automatic citizenship, and via various cases dealing with naturalization); setting budgetary priorities (in one pending case, it has already asserted the right to set a minimum level for government welfare payments; in another, it asserted the right to expand national health insurance coverage); intervening in sensitive family matters (from recognition of gay couples to criminalizing spanking); and even dictating wartime military tactics (with regard to both specific operations, such as one in Rafah in May 2004, and general policies, as in a pending petition against targeted killings of terrorists).
In every one of those cases, under the American system, the Court would only have the right to determine whether the government abused its discretion or violated someone's rights (and if it violated those rights, what the compensation ought to be). The Court cannot, for example, determine the route of the fence currently being constructed between the United States and Mexico. But in Israel, the Supreme Court decided the route of the security fence! Who made them the arbiter of our security? Who declared them to be military experts?

The Winograd Commission decision highlights another major problem with the Israeli Supreme Court. It is one of the rare cases in which there was a dissent.

4. There are very few significant dissents in Israeli Supreme Court decisions. As Yale-trained lawyer Jonathan Rosenblum wrote in the Jerusalem Post in 2001:
Before Americans embrace the efficiency of this system – the judicial equivalent of Mussolini’s getting the trains to run on time – however, they should consider the system’s drawbacks. As one would expect, it has resulted in a Court remarkable in its ideological uniformity. The titanic struggles between rival judicial philosophies that characterize American Supreme Court history – e.g., Hugo Black vs. Felix Frankfurter – are absent from Israel. There is not one justice on the Israeli Supreme Court who serves as a mediating influence on Justice Barak’s jurisprudence, and it is rare for a decision of major impact in Israel to be decided by a narrowly divided Court.

Barak’s dominance of the judicial selection process chills dissent throughout the legal system. Any lower court judge, academic, or attorney-general who aspires to judicial advancement knows that his or her fate is in Barak’s hands. Former Justice Minister Yossi Beilin found out to his surprise that what leading academics, practitioners, and judges told him in private about various court reforms proposed by Barak differed sharply from what they were willing to say in public.
Jewlicious lauds what she claims to be the Israeli Supreme Court's impartiality and decries the alleged political influence on the United States Supreme Court. But a court is by definition a political actor. Its justices' values must reflect society's values across the entire - or almost the entire - spectrum. The vicissitudes of political pressure ensure that a court does not tilt too far one way or the other. By contrast, Israel's Supreme Court has become a monolith whose judges act alike, think alike and rule alike. They protect some minorities but not others. Large segments of Israeli society have no voice in the Supreme Court. That is a recipe for true corruption. It is a recipe for tyranny.

Israel's Supreme Court's unfettered power to nullify laws, combined with a selection process that produces a single way of thinking, has led to an unchecked judicial tyranny over Israeli society. At least until the selection process can be reformed and a more balanced court that better reflects the range of values in Israeli society can be appointed, the Supreme Court should not have the right to overrule laws passed by the Knesset.


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