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The Supreme Court, Art in Israel, and more.




The Supreme Court
To the Editors:
The excellent series of comprehensive, incisive and insightful articles published in various issues of AZURE on matters concerning the judiciary, by Evelyn Gordon, Hillel Neuer and Evan Gahr, portrays a whole that is surely greater than the sum of the various articles’ respective parts. What emerges is a view that something has gone drastically wrong during Israel’s formative first half-century. Without a written constitution or an engrained democratic cultural heritage in the country, the judges have exercised their necessarily broad powers without restraint to supplant the popularly elected legislature and executive. Moreover, in the face of peaceful dissent and protest against judicial usurpation of power, the country and its leaders lack an appreciation for the central role of such activity to the democratic vitality of the country. This has resulted in unjustified attacks, ironically including charges of being “undemocratic,” on those raising their voices in peaceful protest of what they see as excessive governmental action, in this case judicial over-activism.
Given that the judicial function is intended to resolve disputes, should there be limits on the scope and extent of judicial power in order to preserve for the legislative and executive powers some realm of authority and discretion? The companion doctrines of justiciability and petitioner standing (discussed in some of the articles) reflect a fundamental value in reposing in the other, supposedly co-equal branches of government confidence in their superior abilities, respectively, to set overall social policy and direction, and to administer on a day-to-day basis the effectuation of that policy—militarily, domestically and in foreign affairs. The Gordon and Neuer articles document the Israel Supreme Court’s widespread arrogation to itself of powers that traditionally and more appropriately belong to the Knesset and Government, both of which are directly answerable to the electorate, unlike the court.
What the court’s decisions amount to, in their totality, is an abandonment of the rule of law. Under this concept, everyone in a society (including its institutions and governmental officials) is subservient to the mandates of duly enacted law, as opposed to the subjective whims of men and women who happen to be in positions of power. While the Supreme Court purports to compel others in Israel, particularly the executive, to conform to the rule of law, the court has liberated itself from any such constraints. Elsewhere, but not in Israel, judges are constrained by limits imposed upon the powers they wield, either by constitutional mandate, through legislation or by self-restraint (sometimes in reaction to public outcry). In the absence of such limits, increasingly the rule of men—particularly the rule of one man, President Aharon Barak—has taken hold in the new Supreme Court building. This unbridled exercise of judicial power is manifested by the overbreadth of court-sanctioned standing and justiciability; resort to such all-encompassing concepts as Barak’s “the world is filled with law”; invocation of such vague, ultimately undefinable—and hence subjective—standards as “the views of the enlightened community in Israel”; and the like.
The series of articles also documents a gaping hole in the appreciation by the leaders of Israeli society of what democracy is really all about. Their shallow understanding—even by law professors—is reflected in comments that are hostile to any criticism leveled at the Supreme Court, irrespective of the content (and, of course, possible validity) of that criticism. These have most recently been chronicled in Gordon’s article about the delegitimization of peaceful protest by the Haredi community (“The Creeping Delegitimization of Peaceful Protest,” AZURE 7, Spring 1999).
Surely, it is healthy that Israelis accept robust debate about governmental policy and actions in the context of elections. The frequency and general acceptance in Israel of mass demonstrations over all sorts of issues attest to an acceptance, on some level, of the role of public protest in a democracy. The question, therefore, is why does the society brook no criticism of judges when they exercise governmental power?
The answer may lie in the absence of any fundamental agreement in Israel about how the state is to operate. As Neuer observed in his article,“Aharon Barak’s Revolution” (AZURE 3, Winter 1998), “the absence of a written constitution ... injects a constant element of uncertainty.” With no written constitution as an expression of agreed-upon principles of governance, the society has unquestioningly swallowed the Supreme Court’s pronouncements as the only“port in the storm” of political controversy and uncertainty.
Until there is a written constitution addressing the allocation of governmental powers, the Knesset should enact laws—they could be Basic Laws—imposing moderate limits upon the jurisdiction of the courts, especially the Supreme Court sitting as the High Court of Justice. This is certainly not an extreme proposal; the highest courts of other Western democracies are subject to at least some forms of externally imposed jurisdictional limitations. These restrictions could, for example, establish substantive standards of judicial review of administrative action (for example, for what is called abuse of discretion), impose standing requirements by which a litigant must show some form of personal stake in the outcome of the case, or even place certain kinds of actions by correlative branches of government (such as the appointment of a particular person to serve in a position) beyond judicial purview. Various forms of these and other limits on judicial power can be found in respected democracies around the world.
Before any such proposal could become law, however, the government and Knesset would need to comprehend how vital such limits on the judiciary are to a proper balance among the branches of government. It is doubtful whether the same govern-mental leaders who have so recently attacked, rather than upheld, the right of peaceful demonstrations and protest aimed at the judiciary comprehend the need or have the political will to restrict the exercise of judicial power in order to restore balance among the judicial, legislative and executive powers of the state. Absent such legislation, only sustained public protest can correct the present imbalance.
In the realm of law, government and politics, spoken and written criticism and peaceful protest are not undemocratic; they are, rather, the lifeblood of democratic governance. Dissent by yesterday’s minority frequently has evolved into today’s accepted majority view. If Israel cares for its well-being tomorrow, it needs to develop now a positive acceptance of peaceful protest and criticism of judicial actions as an essential, indeed desirable, ingredient in protecting the future of democracy.
David H. Weinstein
Merion Station, Pennsylvania
 
 
To the Editors:
I am happy to see that in AZURE 7 (Spring 1999) your contributors are continuing in their efforts to make the Israeli public aware of the dangers of an intrusive, provocative and excessively “activist” Supreme Court. The large Haredi Jerusalem demonstration was a valuable and effective political and social protest of the court and its recent rulings. A quarter million demonstrators is an impressive number by any standard, and the results of the last election certainly went far towards vindicating the demonstration.
All of the blame for these developments in the judiciary, however, cannot be laid at the door of Aharon Barak and the Supreme Court. Throughout Western democracies, similar anti-democratic trends are emerging. Jason Elbaum, in his essay “Global Pillage” (AZURE 5, Autumn 1998), detailed the transfer of power in the European Union from the citizens and sovereign governments to faceless and nameless bureaucrats in Brussels. And in the last American presidential election, less than half of the eligible voters exercised their democratic prerogative to vote. In Israel, the Knesset is now so fragmented and partisan as to be just about totally ineffective. And what passes for the executive branch, the governing coalition, is so disorganized and weak that it can barely govern.


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