Aharon Barak’s Revolution

By Hillel Neuer

The driving force behind Israel’s constitutional revolution is Aharon Barak, president of what may be the most activist supreme court in the world. An intellectual profile.

For Aharon Barak, however, the court’s workload is less important than its unique role in protecting the rule of law—for “where there is no judge, there is no law.”10 Traditional application of the doctrine of standing, according to Barak, harms the rule of law by opening the door to government illegalities: “When the court does not become involved, the principle of the rule of law is damaged. A government which knows in advance that it is not subject to judicial review is a government which might not enforce the law and might cause its breach—all this under the shadow of the standing doctrine.”11
In a recent appearance before the Knesset Law Committee, Barak revealed the personal origin of his beliefs on standing. While serving as attorney-general in 1977, he was confronted with a scandal that erupted over an illegal U.S. bank account maintained by Leah Rabin, wife of the sitting prime minister. Finance Minister Yehoshua Rabinowitz informed Barak of his intention to levy an administrative fine as a way to preempt criminal charges. When Rabinowitz admitted that his real concern was for the Labor government’s reelection prospects, Barak protested that the fine would never stand up in court. According to Barak, Rabinowitz responded: “No one has standing—who will go [to court]?” Barak’s resultant indignation drove him to a fateful conclusion: “I said to myself, if ever I am able to have an influence, the standing rules must be liberalized; it cannot be that only someone with an interest [can make such a challenge].”12 
With the passage of time, Barak gained the ability to have an influence, and liberalize he did. The traditional practice in Israel had been that in the area of private law, a suing party had to show that a personal right had been infringed upon, whereas in matters involving a public or governmental body, a petitioner only had to have a personal interest in the matter to be heard. In Barak’s view, however, the courts needed not require even a personal interest in such public cases: Anyone seeking a judicial decision on an issue that involved a substantive violation of the rule of law, or in a matter which the court deemed to be in the “public interest,” merited standing.13 As Barak’s vigorously-advanced approach gained currency among his peers on the bench, the Supreme Court in effect transformed a petitioner with no personal interest into the bearer of a right—the right of the individual to assure legality in government.
Alongside his liberalization of the rules of standing, Barak also succeeded in whittling away the restrictions stemming from a related judiciary concept, known as “justiciability.” Whereas standing determines which party the court will hear, justiciability determines which issue the court will hear.14 The justiciability standard is classically used to exclude from judicial consideration a range of policy questions, such as the conduct of foreign affairs, best left in the hands of the executive or legislature. By keeping such issues out of the judiciary’s reach, the justiciability doctrine immunizes entire areas of governmental action from the law’s watchful eye—a state of affairs deemed intolerable by Barak and his like-minded colleagues.
Over the course of many Supreme Court rulings under the presidency of Meir Shamgar from 1983 to 1995, then-justice Barak’s lengthy judgments began to have their effect, and justiciability rules were dramatically liberalized. A significant blow was struck in the 1986 Ressler decision—which today serves as a case study in the evolution of court accessibility in Israel.15 In 1970, a petitioner complained to the High Court of Justice 16 that the defense minister had abused his discretion in granting exemptions from military service to yeshiva students. The court found that the issue was a “political question” not appropriate for a judicial decision, and that the petitioner failed to establish that he suffered any personal damage; the petition was dismissed.17 In 1981, another petitioner, attorney Yehuda Ressler, went to court with the same complaint. The court held that the question lacked legal criteria according to which a court could reach a decision, and that it was a public issue the solution of which should be left for non-judicial bodies. The court would not let itself be dragged into a “public and political controversy on a sensitive and stormy subject, on which public opinion is sharply divided.”18 Five years later, in 1986, Ressler tried again and, with Justice Barak and other, sympathetic judges on the panel, the court determined the matter to be justiciable (while denying the petition on its merits).19 In his decision, Barak devoted twenty-five pages to the issue of justiciability, in which he set forth a philosophy whose implications extended well beyond the confines of the case.
In the Ressler decision, Barak delineated two classic categories of justiciability, normative and institutional.20 Normative justiciability deals with the question of whether authentic legal criteria exist with which the court can decide a case before it; if there be no legal criteria with which to rule, the case is normatively non-justiciable, and the court cannot hear it. Institutional justiciability, on the other hand, deals with whether the subject matter of the case is “appropriate” for judicial decision; a court which invokes this reason for not hearing a case is saying that even if it could find a legal basis on which to rule, it considers some other branch of government the more appropriate venue for making the decision. Aharon Barak is not too fond of either type.
A finding of normative non-justiciability is literally inconceivable in the Barak worldview, because there can exist no legal void. The law can never be silent, and that which is not proscribed by the law is permitted by the law: “There are no acts (of commission or omission) to which the law does not apply. Every act is caught within the world of law. Every act can be ‘imprisoned’ within the framework of law. Even the activity bearing the greatest political character—such as making war or peace—is examinable by judicial criteria.”21 
Such a position, however, does not necessarily exclude the argument of institutional non-justiciability, the idea that there are some areas where it is “inappropriate” for a court to intervene because the separation of powers at times mandates judicial deference to executive discretion or parliamentary independence. Yet even here, Barak balks at the prospect of restricting the courts. First, he cites a prima facie problem with institutional non-justiciability. Once we accept a legal philosophy that finds the juridical in everything, and which thus grants the court virtually limitless jurisdiction, where does the court draw authority to turn away a dispute tendered before it? The tables are turned: It is precisely the refusal of the court to judge an issue of a political nature which would constitute “political thinking,” and which is therefore inappropriate for the court. Even in a dispute of a political nature, argues Barak, judges are amply equipped to apply legal criteria.22 Any time a court declares an issue too “political” and hence “inappropriate” for judicial intervention, the court is essentially granting the government freedom to act outside the law.
By virtually doing away with institutional non-justiciability, Barak challenges the common conception of the separation of powers, in which the essential tasks of governance are divided among the three branches of government in accordance with the perceived strengths of each. Departing from the classic understanding of the separation doctrine, which discourages courts from intervening in political questions best left to more representative branches of government, Barak invokes the separation of powers to justify court intervention in the activities of the legislature and the executive.23 True, Barak writes, separation of powers places two limitations on the judiciary: It obligates the judge to give effect to the policy behind a law passed by the government, and it bars a judge from intervening in government actions that are technically legal and fall within a “zone of reasonableness.”24 Nonetheless, the separation of powers does not imply to Barak the dictatorship of each authority within its own sphere. Instead, Barak advocates a set of relations that foster “non-dependence by defined mutual supervision.”25 Even the term “separation of powers” is misleading, since between the branches stand not walls but “bridges which supervise and balance.”26 The purpose of this delicate equilibrium is not effective government per se; rather, what ultimately motivates the compartmentalization of power and the harnessing of authority is a desire to safeguard the freedom of the individual.27 With mutual supervision essential and rights at stake, the Supreme Court, entrusted by society to safeguard the rule of law and protect individual rights, must take a most active role in reviewing the activities of the executive and legislature.
Aharon Barak’s dilution of the justiciability doctrine is almost perfect. Only two exceptions remain, both of which relate to the image of the court. First, he recognizes that society may not want the court to tread on certain areas considered best left to political decisionmakers. In certain highly politicized cases such as those involving the Oslo peace process, Barak and the majority of the justices have in fact chosen not to intervene.28 In such cases, the court should restrict itself to making sure that government action violates no explicit law; if the government feels its discretion is excessively constricted by the law, it can always pass an amendment. The second possibility of institutional non-justiciability, says Barak, is in a case where justice may “seem not to have been done,” where court action itself undermines public confidence in the judiciary.29 Even then, insists Barak, the court must bear in mind its duty to protect the rule of law, and consider the possibility that non-intervention may inflict the greater harm to public confidence.30

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