The Jerusalem Post
The judicial system’s stranglehold on politics
In her op-ed in The New York Times titled “Israel is falling apart because the conflict controls us,” Dahlia Scheindlin presented the thesis that the whole of Israeli politics is built around the Israeli-Arab conflict or, as she calls it, “the occupation.”
She paints a picture in which all the changes she wishes to see in Israeli society are being blocked because a coalition of the Right with religious and ultra-Orthodox parties has converged around a desire to support the continuation of the occupation and of discrimination against Israel’s Arab citizens.
Scheindlin also argues that the struggle against the judicial system’s takeover of Israel, in which I apparently play the role of a “firebrand crusader” and leading rabble-rouser, is a “sustained attack” by the Right on the courts in order to stop it interfering with the occupation and discrimination against Israeli-Arabs, or so that Israel can be transformed into a religious-extremist, even theocratic regime.
First, I am obviously honored to be identified as one of the main contributors to the single most important campaign for Israeli democracy, which I launched by founding the Movement for Governability and Democracy nine years ago.
But, unfortunately, I cannot take all the credit, and the list of activists and supporters behind this campaign should provide the strongest possible proof that Scheindlin’s central thesis has no foundation in reality.
In the campaign against the Supreme Court’s extreme judicial activism and the attorney-general’s theft of governing authorities, you can find the likes of Prof. Ruth Gavison from the Hebrew University of Jerusalem, one of the founders of the Association for Civil Rights in Israel, its former president, and an Israel Prize laureate. One would be hard-pressed to smear the late Prof. Gavison as an opponent of human rights or as someone who sat on the sidelines as Israel’s control of Judea and Samaria harmed Arab rights, in her opinion.
Alongside her, you can also find Prof. Daniel Friedmann, who was politically affiliated with the anti-haredi Shinui Party and served as the justice minister in prime minister Ehud Olmert’s government, which actively planned a complete Israeli withdrawal from Judea and Samaria.
Joining them, you can add Haim Ramon, a Labor Party minister and chairman of the Histadrut labor federation, a secular left-winger who cannot be suspected of supporting the “occupation” or wanting to establish an apartheid regime.
To this long list, we can add the president of the State of Israel,
Reuven Rivlin, who as speaker of the Knesset called the judicial system, owing to the excessive power that it wielded over elected representatives, “the rule-of-law gang.”
It’s no wonder that Israeli public confidence in the judicial system has plummeted in recent years by dozens of percentage points.
And if we need more proof from overseas, I recommend reading what Judge Richard Posner wrote about the judicial philosophy of Aharon Barak, the Supreme Court president who introduced the action plan that the Israeli judicial system has been following since the late 1980s. In his 2007 article titled “Enlightened Despot,” Judge Posner supports the view that Barak “establishes a world record for judicial hubris” and even calls him a “legal buccaneer.”
The claim that anyone opposing this doctrine does so only because of the debate over the “occupation” is therefore committing serial violations against truth.
IT IS important to know a few facts about the Israeli justice system, some of which I outlined in my book Supreme Rulers: How Israel Became a Legalocracy (working title), which is set to be published in English soon.
The Supreme Court allows itself, without any basis in regular or constitutional law, to overturn laws and Basic Laws (the “semi-constitutional” laws that the courts have taken on themselves to read liberally as a constitution). The equivalent would be if the US Supreme Court were to strike down not just acts of Congress, but also duly enacted constitutional amendments.
Moreover, the Israeli Supreme Court grants standing to anyone, without any connection to the issue at hand, to file a direct petition against any government action or law passed by the Knesset. The court will deliberate on the case, with a judicial panel whose composition it alone will decide (not all of the Supreme Court’s 15 justices need to preside over every case), and will deliver a ruling that cannot be appealed to any other body.
The Israeli Supreme Court has also arrogated the right to second-guess the reasoning of every officeholder. It meddles with military rules of engagement, budgetary decisions, and appointments.
Just imagine a regular American being able to petition the Supreme Court because he disapproves of the appointment of a secretary of state, arguing that the president acted “unreasonably” in exercising this constitutional power.
And all this, in a reality in which justices are not appointed by elected representatives but by a committee in which democratically elected officials are in the minority and incumbent justices have a veto over all new appointments.
Can anyone who supports this situation really be considered a supporter of democracy and the separation of powers?
Do those who oppose this situation and are campaigning to change it, with the support of right-wingers and left-wingers alike, not deserve to have their arguments addressed on their merits?
The role of the attorney-general in Israel, who doubles up as the government’s legal adviser, also has no parallel anywhere in the world. The OECD has criticized this concentration of power in the hands of a single individual, recommending that Israel split the job held by one unelected official.
The attorney-general, most of whose functions are not anchored in law but whose power is constantly buoyed by Supreme Court rulings, gives binding legal advice to ministers and the whole government while holding a monopoly on representing the government in the courts. It is not rare for him to stand in front of the Supreme Court and submit a position that contradicts that of the minister he is supposed to represent or the prime minister, with elected officials having no legal representation at all. He also has the authority to file indictments against elected officials and justices, at his exclusive discretion.
Opposition to the inflationary growth of the attorney-general’s tentacle-like authorities is also shared by Israelis on the Left and Right alike.
BUT DESPITE everything, Scheindlin’s op-ed does contain one element of truth: the “occupation” does indeed control the political map in Israel on issues relating to judicial reform.
Israelis who, on the merits of the case, would otherwise fiercely oppose the judicial system’s excessive powers find themselves supporting it, in the hope that it will help them advance their left-wing positions, which despite enjoying negligible support in the Israeli public, remain dominant in the halls of the Supreme Court and university law faculties.
The desire to occupy the State of Israel from the general public has allowed supporters of democracy and human rights to serve as slavish devotees of a system that is amassing vast amounts of undemocratic power, and which frequently inflicts damage on both democracy and human rights.
The politicization of the justice system, and the accumulation of excessive power in its hands, has produced the worst political crisis in Israel’s history. We won’t be able to escape it unless we transcend party lines and fight together for Israel as a Jewish and democratic state – where the people’s elected representatives can govern.