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Center Court

Reviewed by Evelyn Gordon

Judicial Activism, For and Against: The Role of the High Court of Justice in Israeli Society
by Ruth Gavison, Mordechai Kremnitzer, Yoav Dotan
Magnes Press, 293 pages, Hebrew


During the past decade and a half, a remarkable gap has opened up in Israel between the unprecedented activism of the country’s Supreme Court, on the one hand, and the paucity of substantive intellectual debate about the court’s practices, on the other. The Israeli High Court has been among the boldest anywhere in the democratic world, going well beyond the letter of the law in striking down the actions of the government and legislature in a range of areas including foreign and defense policy, religion and state, family law, edu­ca­tion, and the appointments of high-ranking officials. Moreover, a sub­stantial segment of the public has responded to many of the court’s decisions with alarm, and has made judicial activism a subject of mass de­­mon­­strations as well as a central issue in national elections.

In such circumstances, one would have expected Israel’s legal scholars to play a constructive role in shaping the public debateby providing well-grounded arguments that could shed light on the pros and cons of judicial activism, by examining the jurisprudential philosophy of the court in its theoretical and comparative contexts, and by offering the public an example of reasoned debate in which adversaries are treated with respect. Unfor­tu­nately, the scholarly community in Israel has not risen to the occasion. With the notable exception of current Supreme Court President Aharon Barakwho, through his many books, articles, and extensive court decisions spanning two decades, has made himself not only the leading practitioner of an activist judicial philosophy but also its preeminent theoreticianIsraeli scholars have produced hardly any written work on judicial activism beyond a smattering of narrowly focused papers in law journals. And, since critiques of the trend towards activism have been especially sparse, what little discussion has taken place has been rather uninspired, a dialogue among scholars who largely agree with one another.

But if scholarly writings on judicial activism have been rare, comprehensive treatments aimed at the general reader have been even scarcer. Israelis seeking to learn about both sides of the issue without perusing back issues of law journals have had nowhere to turn for a serious discussion; they have been left with what can be gleaned from newspaper articles, radio interviews, and talk shows.

Against this background, the recent appearance of Judicial Activism, For and Against, the first book-length treatment of this subject in Israel, is a milestone in Israeli intellectual life. Indeed, it is no slight to the book to say that its greatest contribution may well be the fact that it exists at all, sending the clear signal that the issue of judicial activism is worthy not only of study, but of robust public debate among scholars who disagree with one another. The status of its two principal co-authors, Ruth Gavison and Mor­dechai Kremnitzer, coupled with the fact that it is geared for the intelligent layman as well as the scholar, is likely not only to make this book a standard reference on the subject, but also to raise the standards of both scholarly and public debate over the role of Israel’s Supreme Court.

From this perspective, the authors’ public stature is obviously an important part of the message. Gavison, in addition to her academic achievements as a law professor at the Hebrew University and a senior fellow at the Israel Democracy Institute, has a distinguished record of public service, including membership in public commissions dealing with topics ranging from privacy rights through media law to religious-secular relations. Her greatest involvement has been in promoting civil rights, and she has served stints as both president and chairwoman of the Association for Civil Rights in Israel (ACRI). Krem­nitzer, a former dean of Hebrew University’s law school, also has a lengthy record of public activity: He served as an adviser on draft legislation to several Knesset committees, co-authored the massive overhaul of the penal code enacted by the Knesset in 1994, and is currently part of a team of in­ternational experts drafting a model penal code for democratic societies; he has also chaired public commissions on a variety of subjects rang­ing from police brutality to civics education. At present, he is chairman of the National Press Council, the principal media organization responsible for enforcement of journalistic ethics.

But it would do the book a grave injustice to suggest that its contribution to the debate begins and ends with the seal of legitimacy Gavison and Kremnitzer confer on it. Judicial Activism offers a wealth of material that is crucial for informed discussion. The introduction by Yoav Dotan, a senior lecturer in law at Hebrew University, is significant in this regard: It provides a readable and balanced background to the arguments over judicial activism, arming the unfamiliar reader with the technical terms and historical facts he needs to follow the debate while also providing material of interest to the more know­ledgeable student of the courts.

The heart of the book, however, consists of a lengthy essay by Gavison making the case against judicial activism in Israel and an equally long essay by Kremnitzer defending it. There is an element of dialogue among the three parts, as the authors were given the chance to read one another’s essays and to revise their own accordingly; at times, they even chose to respond directly to one another’s arguments. But though the differences of opinion are often sharp, the tone is respectful. Kremnitzer and Gavison obviously hold one another in high regard, and make it clear that neither side in the debate possesses a monopoly on the right to be heard.

Judicial Activism, For and Against is hardly the last word on its subject, and it has its share of weak arguments. But for a work that is meant to spur debate rather than end it, this is certainly not a fatal flaw. Therefore, in the spirit that its authors are seeking to encourage, it is worth considering, in a critical vein, some of the principal arguments raised by Kremnitzer and Gavison.

 

In understanding the rise of judicial activism in Israel, it is essential to understand those flaws in Israel’s political system and culture that have prompted the court’s growing involvement in public life. It is therefore a shame that the reader must wait until Kremnitzer’s essay, the last one in the book, to be treated to an in-depth analysis of these flaws. But despite its late arrival, Kremnitzer’s analysis provides an important contribution to the debateand indeed, it is the most compelling part of his essay. One can disagree that the court is the proper solution to the problems he highlights, but there is no question that they exist, undermine the country’s ability to govern itself, and are in need of some solution.

The first of these flaws is that Israel has not developed a culture of “it’s just not done,” of the kind that can deter politicians from engaging in legally or ethically questionable behavior, or compel them to leave public life in disgrace when caught. And when politicians behave in a way that most people would consider morally inappropriate, this gives the court an openingKremnitzer would say an obligationto act. The dilemma was nicely summed up by a British jurist’s comment after the Israeli High Court ruled in 1993 that Aryeh Der’i had to resign as interior minister because of an indictment against him on corruption charges, even though no explicit law required him to do so. In Britain, the jurist said, he could not imagine the high court making such a decision in the absence of a clear legal mandatebut on the other hand, he could not imagine any British minister refusing to resign after being indicted for corruption. To Kremnitzer’s way of thinking, Israel would be largely devoid of basic elements of public morality had the court not begun imposing its own moral standards on the government.

The case of Yossi Ginosar, one of several examples that Kremnitzer cites, illustrates this problem in its starkest form. Ginosar, a one-time senior official in the General Security Service (GSS), was appointed director general of the Housing Ministry by then-Minister Binyamin Ben-Eliezer in 1992. The appointment was approved even though Ginosar was known to have been involved in two unsavory episodes during his time in the GSS: The extra-judicial killing of two captured terrorists who had hijacked Egged bus no. 300 in 1984; and the securing, by illegal means, of a false confession of espionage from Cir­cassian IDF officer Izat Nafsuwho spent seven years in prison before the injustice came to light and the convic­tion was overturned. In the first case, Ginosar misled a state commis­sion of inquiry about the GSS’ role in the killings; in the second, he headed the team that extracted the confession, and then lied to the court regarding the means he had used. With consid­er­able justice, Kremnitzer declares that “such an appointment would not have happened in any properly run country.” The appointment was canceled only after a citizen petitioned the High Court against it, and the court ruled that the appointment violated fundamental standards of public morality and was therefore so unreasonable as to be illegal. This, Kremnitzer argues, is a classic case in which the alternative to judicial activismletting a man who had engaged in flagrant misconduct assume a senior government postwas simply unacceptable.



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