Restoring Israel’s democracy

Aslew of recent rulings by the Supreme Court invalidating government and Knesset actions highlight in dramatic fashion the abusive and outsized power seized by the court at the expense of the country’s elected representatives.

There is disturbing irony in this. While one of the mandates of the Supreme Court, sitting as High Court of Justice, is to order state officials to refrain from taking action that is beyond the scope of their authority, it was former Supreme Court chief justice Aharon Barak who engaged in probably the most improper and far-reaching power heist in the history of the state. The consequences of that illegitimate power grab are reverberating today.

The healthy balance of power, so important to a properly functioning democracy, was fundamentally undermined by Barak, who persuaded a generation of Israelis that Israel not only has a constitution, but one that also grants the court the power to strike down Knesset legislation in all facets of life. The invalidation of a consequential number of government and Knesset acts, and regular warnings that contemplated legislation cannot move forward on account of “constitutional defects” transfers rule-making from the elected representatives of the people to judges chosen by a small committee. And sitting on this committee are Supreme Court members who, effectively, can veto any new appointee not to their liking.

This dangerous transformation of Israel’s democracy is based upon a fiction. Israel does not have a constitution. Israel’s “constitution,” no matter how enthusiastically celebrated and cited by its proponents and advocates, is no more real than the emperor’s new clothes.

How does a genuine constitution obtain legitimacy? The United States Constitution was drafted during a three-month process by representatives of 12 of the 13 then extant states. Following its completion, it was sent to the US Congress for review and to the 13 state legislatures for approval. Pursuant to the terms of the draft constitution, the document would not become binding until it was ratified by nine of the 13 states.

The debate process took place all across America, in outdoor fairs and town hall meetings, on the pages of local newspapers and in the halls of state legislatures. Only after nine months of a great national debate was the US Constitution ratified.

Similarly, Australia’s 1901 Constitution was drafted over the course of a year, following which two years passed until it was ratified by the required representatives of Australia’s colonies.

When members of the European Union wanted to establish a European constitution, they spent two and a half years in discussions and negotiations until agreement on its provisions was reached. The text was unanimously approved by representatives of all member states, with most signers being heads of state. But that still did not suffice. Approval was separately required by each member state through its legislature or via national referendum. Ultimately, the terms were not approved.

While England is viewed as having an “unwritten” or “uncodified” constitution, it evolved over more than 325 years. And English courts may only interpret laws of Parliament. They may not reverse or declare them invalid as being “unconstitutional.”

What of Israel? Barak concocted Israel’s “constitution” out of two laws passed by the Knesset in 1992 on the last day of the outgoing 12th Knesset. These two laws, “Basic Law: Human Dignity and Liberty” and “Basic Law: Freedom of Occupation,” were adopted with the affirmative votes of 32 and 23 Knesset members, respectively, out of a 120-member total.

The whole notion of Israel’s “constitution” rests entirely on the Supreme Court’s grandiose embellishment of these two Knesset bills that passed, as noted, with “yes” votes from 27% and 19% of Israel’s legislature, never once mentioned the word “constitution” and made no reference to the courts or to the concept of judicial review.

But three years later, in the 1995 Supreme Court case Bank Mizrahi v. The Minister of Finance, the court held that these two Basic Laws are the supreme law of the land and constitute part of Israel’s new constitution and that any new Knesset law is subject to judicial review. Barak called this Israel’s “constitutional revolution.”

Thus, since 32 Knesset members deemed it necessary to pass a law that says, “There shall be no violation of the life, body or dignity of any person”, the Supreme Court decided to accord that statement with constitutional status and then allocated to itself the power to annul any Knesset law in any realm, be it security, economic, social, political or religious, if the Court finds that such law violates the “dignity of any person.”

In his 2006 book, A Judge in a Democracy, Barak writes that “a branch of government should not judge itself. It is therefore appropriate that the final decision about the legality of the activities of the legislative and executive branches should be taken by a mechanism external to those branches, that is, the judiciary.” But what of the courts? Who checks their power? According to Barak, there is no need. Unlike the executive and legislative branches, checks on judges are not necessary “because of their education, profession, and role,” and because they are “trained and accustomed to dealing with conflicts of interest.” They are better than the rest.

And also, in Barak’s view, they can be trusted since they are “not fighting for their own power.”

Most Israelis examining the behavior of Barak during his tenure as chief justice, and that of outgoing chief justice Miriam Naor during the past year, including some of her most recent actions and pronouncements, would be extremely dubious of these propositions.

Barak and his successors have used their self-created constitution to set in place a system that, time and again, has substituted the judgment of the unelected judiciary, whom Barak has suggested are the “enlightened members of society,” for that of the elected branches of government.

In a true democracy, power and authority are granted by the consent of the governed. They cannot simply be seized – not even by sophisticated judges in dignified robes.

The writer is an attorney in Israel and New York and a member of the Likud’s Central Committee.