Print
PDF FormatAn absence of written constitutional limits, however, clouds the court’s role. If judges are granted the power to overturn government action in defense of rights which are themselves not explicitly protected, there is a constant danger that the justices will end up imposing their own ideas of what types of behavior should be protected, thereby usurping the prerogatives of the legislature. Very few rights are so universally recognized that the courts can simply assert their inalienability, without reference to a constitution or similar legal framework. Such universal laws, in the words of former U.S. Supreme Court Justice James Iredell, “are regulated by no fixed standard: The ablest and purest of men have differed upon the subject.”66 And even in the rare case where a right does command a broad societal consensus, or is absolutely necessary for the preservation of democracy (such as freedom of expression), the lack of explicit authorization obligates the courts to treat these rights in minimalist terms, protecting them only to the degree that is absolutely necessary.
The Israeli Supreme Court, however, sees the lack of a constitution not as a call for restraint, but the opposite: Since the early 1980s, the Shamgar and Barak Courts have granted themselves carte blanche to fill the vacuum, granting the broadest possible protection to a host of rights of their own contrivance. Consider, for instance, a recent court ruling which, basing itself on the right to free expression, overturned a government decision to cut a few minutes from a movie because the scenes were determined to be pornographic.67 In Israel, the screening of pornography is prohibited, and the government’s Film Censorship Board is charged with the duty of judging a film’s debauchery according (in the court’s own words) to “contemporary community standards.” In this case, the Supreme Court ruled that despite the judgment of a majority of both the Censorship Board and a panel of independent experts consulted, the testimony of those few experts who thought it was “art” was enough to warrant its protection on free speech grounds.
Aside from the obvious objection—noted by Justice Mishael Cheshin in his dissent—that the Censorship Board, which includes representatives of all sectors of the public, is probably a much better judge of “contemporary community standards” than the court, the ruling raises a fundamental question about the court’s activities. For unlike in the U.S., where freedom of expression is unambiguously protected in the First Amendment, the Knesset has never even bothered to protect freedom of expression via an ordinary law. In other words, the court had struck down the action of a government body acting responsibly and fully within its legal mandate, in favor of a free-speech principle that not only had no legislated basis whatsoever, but was interpreted so widely that it included pornography—an interpretation which many free-speech advocates would themselves not support. Though the court clothed itself as the valiant defender of legitimate rights, in reality it was a clear-cut case of the court making a value judgment—that freedom of expression is more important than the prevention of pornography—and imposing it upon the country in contravention to existing legislation.
Nor has the creation of rights been limited to freedom of speech. In January 1997, for example, the High Court ruled on the case of a secular, bearded man who had petitioned against the government’s refusal to supply him, free of charge, with a special gas mask which, unlike the ordinary masks given out to the public, could fit over a beard. The special masks were already being handed out for free to observant men who cited a religious prohibition against shaving; the government required that nonobservant men who wanted them pay a fee, since they cost the state two-and-a-half times as much as the ordinary masks.
The court ruled that this constituted unjust discrimination, since many orthodox authorities permit the shaving of beards with an electric razor, and all permit shaving in a life-threatening situation such as a chemical weapons attack. Yet instead of allowing the government to decide how it wanted to solve the problem—by issuing the special masks for free to either everyone or no one—the court then ordered the issuance of the masks, since “a beard is part of a man’s self-image,” and the right to determine one’s self-image is implicitly protected by the Basic Law: Human Dignity and Liberty. The verdict continued:
There will, perhaps, be people who will want to know if it is possible to assign this right to one of the specific basic rights [enumerated in the law].... But in this case, I would choose not to deal with the question of ascribing the right to grow a beard to any of the specific basic rights, whether those listed in the body of the Basic Law: Human Dignity and Liberty (such as the right to bodily integrity and the right to privacy) or those which are not explicitly mentioned (such as freedom of expression, for example).... In our case there is no need for attribution of this sort. Human dignity, as a protected constitutional value, has a broader meaning than the sum total of the recognized specific rights.68
In other words, the court need not restrict itself to those rights actually enumerated in the Basic Law; that law has a “broader meaning” under which the court may protect a host of other rights of its choosing—in this case, a man’s “right” to define his own self-image. In so ruling, the court invoked a right that was neither legislated nor at all obvious—the right to keep a beard even in time of a chemical attack—in order to trample wholesale upon a prerogative of government that is both legally entrenched and universally recognized—the right to control the budget. Thanks to the new court-created right, the government today has to divert an unknown sum—potentially in the millions of shekels—from the budget approved by the Knesset into protecting the self-image of the bearded in time of war.
But the court’s encroachment upon legislative privilege does not end there. Not only has it given broad protection to a wide range of rights of its own concoction, it has even arrogated to itself the authority to overturn government decisions which violate no law or right, based solely on its judgment that the action in question is “unreasonable.” In the case that sparked the haredi editorials, for instance, the law was clear: The Transport Ministry’s traffic supervisor is legally authorized to close major roads, and this official chose to close Bar-Ilan Street on the Sabbath. The court issued an injunction against the closure, citing no law or right that had been violated, but simply because the justices were unconvinced that the supervisor had weighed all the relevant factors properly: They wanted to know why he now supported closing the street when he had previously opposed the closure, and whether the elections and the subsequent change of governments had had any influence on his decision (“Other than the identity of the minister,” they asked, “what has changed?”69); they charged him with improperly weighing the precedent this would set for future road closures that might eventually choke off the city on the Sabbath (“Where will the limit be?”70), criticized his inadequate research of the matter (“From the factual point of view, you have no idea what is going on!”71), and asked why he recommended closing the street for more hours than a public commission which studied the problem earlier had proposed.72 Eight months later, in April 1997, the court finally ruled definitively that the decision was unreasonable, and therefore illegal. The verdict detailed how the government would have to change its decisionmaking to convince the court of its reasonability, and in the end, the government made the necessary changes and closed the road on the court’s terms.
The problem with the reasonability standard lies in its disregard of the separation of powers. In the Bar-Ilan case, all the objections raised by the court concerned the competence of policy decisions, rather than matters of law or protected rights—there is no “right” to use any road at any time. (As the state noted in its response to the court on this case, if such a right existed, governments would not be able to declare certain streets one-way, because that would infringe on people’s “right” to use that road when they happened to be at the wrong end.) There are sound reasons why constitutional theorists have long espoused the clear delineation of roles for the various branches of government. While rights are best protected by a judiciary which is insulated from the majority’s whim du jour, policy and value judgments, which are meant to reflect the current consensus, are best left to those bodies most responsive to popular opinion. The question of a decision’s reasonability is the perfect example of something which is a matter of judgment rather than law. To the secular MKs who petitioned the court against the decision—and apparently, to most of the justices as well—the government’s original decision to close Bar-Ilan Street was unreasonable. But to the government, the haredim, and a mixed secular-religious commission set up by the Jerusalem municipality to study the issue, the closure was eminently reasonable.73
