Tuesday, December 06, 2011

Israel's High Court of Justice, Supreme Court and the Political System

Full Court Press

Israel Supreme Court President Dorit Beinisch recently excoriated legislators critical of the judiciary as "robbed Cossacks" who were guilty of "incitement" and waging a "campaign of delegitimation" against the court. An unnamed associate close to the justice told reporters that Israel was heading down the same path as Germany in the 1930s.

What accounts for this tirade? Beinisch was reacting to a political backlash that has buffeted her institution that's been engineered mostly – but by no means exclusively – by Orthodox and populist right-wing politicians fed up with the court's left-wing judicial activism. In fact, however, the issues go beyond left and right, liberal and conservative, Orthodox and secular. The political system as structured is finding it difficult to deliver civil liberties and democratic values in a way that is perceived as legitimate by all sectors of society.

The immediate impetus for the controversies swirling around Beinisch relates to a slew of proposed legislative initiatives in the Knesset that – taken together – has unnerved many who are not considered garden-variety leftists.

The first involves how three soon-to-be open seats on the Supreme Court, including Beinisch's own when she retires in February, will be filled. Another would limit the legal standing of foreign pressure groups before the court; there is also a bill that would restrict the ability of European governments to bankroll proxy groups staffed by secular left-wingers and which EU countries have used to sway Israeli policies via the court; still another would rescind a relatively recent eligibility requirement that prevents a justice from being appointed president of the court unless he is within three years of the mandatory retirement age of 70. This backtracking seems tailored made for Justice Asher Grunis who is five weeks short of meeting the current requirement. Some on the right would be glad if Grunis, a proponent of judicial restraint became the court's next president.

Yet another bill would have dramatically increased the fines a mostly left-leaning media would have to pay for publishing patently false stories about a person or group. Like the existing libel law, compensation would be allowed even if damage isn’t proven.

Arguably the most important bill, however, in the view of veteran court observer Evelyn Gordon is one to let the Knesset Constitution Committee vet Supreme Court candidates, "like every other democracy in the world does."

More is involved here than a rightist push back against a perennially assertive leftist institution. At its most raw, this is a power play pitting irresponsible liberal elites against no less irresponsible illiberal counter-elites. It reflects a sense that Israelis are questioning the legitimacy – the worthiness – of their political system. It's been long in coming. As Israel has become less secular and more inward looking, especially since 1977 when the Labor Party lost its lock hold on the state, the court has evolved into the ultimate bastion not just of liberal values but for the exercise of left-wing political power.

The problem therefore is not that the court does not reflect the passions of the majority – that is how high courts in representative democracies are intended to function – but in the way the court has frittered away its political legitimacy. In short, the court has permitted its natural mandate the protection of democratic values, to be undermined by relentlessly enabling leftist interest groups to co-opt and, in the public's mind's eye, dominate its agenda.

Israel's 16-member Supreme Court (unlike Beinisch most justices are quite anonymous) typically operates in panels of three justices, primarily hearing appeals from the lower courts. More potently, sitting as the High Court of Justice (known as Bagatz) and operating as a court of first instance, not an appellate court, the justices exercise judicial review over Knesset and governmental authorities applying Israel's still-in-the-making "constitution." The court's ethos established by former Chief Justice Aharon Barak that "everything is justiciable" infuriates not only right-wingers and not only because the court generally leans Left. Judicial review is a worthwhile principle whose legitimacy is best protected when exercised with comparative restraint and when judges are not perceived as blatantly partisan. Neither is true in Israel.

In contrast to the US Supreme Court which hears fewer than 100 cases annually, Israel's High Court of Justice handles over a thousand petitions each year. There is essentially no need to establish legal standing in order to bring a case, a peculiarity exploited by EU-funded pressure groups that aim to thwart government policies. In this way, the court has lost any appearance of standing above the fray.
The court's critics complain that it is comprised mostly of like-minded types: politically, socially, academically and religiously. Gordon noted that one study found that minority opinions were handed down in only three percent of all Israeli Supreme Court cases from 1948-1994 compared to about 60% in the United States. Not only are the justices homogenous, they basically replicate themselves through a nine-member Judges Selection Committee that is chaired by the Minister of Justice (who in the current instance happens not to be a Knesset member) and is comprised of one cabinet member, three sitting justices (including President Beinisch), two Bar Association delegates and two Knesset members.

Indeed, yet another contentious bill under Knesset consideration would require Bar Association representatives to be chosen in a manner that would reflect rank-and-file sentiment instead of its top echelon. The current selection process has meant that candidates who do not neatly fit the mold – Prof. Ruth Gavison for instance – do not stand a chance of becoming justices on the grounds that they have an "agenda."

Liberals counter that in Israel's fractious society, where the Knesset frequently shirks its responsibilities on such matters as protecting religious pluralism, civil liberties, and providing a legal umbrella for the Palestinian Arabs in Judea and Samaria, the court has no choice but to fill the moral and legal vacuum. The court, they say, has become the last bastion for democratic values of tolerance and respect for minority rights. Pure majority rule, they say, could well result in a fundamentally intolerant outcome. And giving politicians a greater role in vetting justices put forth by the selection committee would destroy this albeit imperfect division of powers.

Furthermore, the court's defenders point out, on genuine national security issues the justices rarely intervene and when they do tend to back the government.

Where does all this leave classical liberals in the Jabotinsky mold who are unhappy with the court's overreaching and its codependent relationship with foreign funded leftist pressure groups? At least some of them would rather accept a flawed hyperactive court than a runaway populist Knesset.

The Likud's Dan Meridor, for instance, has stridently supported judicial prerogatives against political criticism of the judiciary which, he pointed out, originated not in Likud but during the tenure of Daniel Friedmann as Justice Minister in Ehud Olmert's Kadima government. Benny Begin, another member of the inner cabinet, referred to the Knesset majority's effort to hamstring the court as "political gluttony" and called on them to show restraint. And even Prime Minister Benjamin Netanyahu, who allowed the issue to fester, ultimately announced that he sided with Meridor and Begin against opponents of the court within his own party and beyond.

Netanyahu made the right call. Israelis can't convincingly disparage pure democracy in the Arab world – as it catapults one Islamist party to power after another – as being inimical to authentic democratic values while carrying the banner of majority rule "no matter what" in Israel. Indeed, given the machinations of the Knesset, there is today no majority to block separate sidewalks and buses for men and women or prevent women from being marginalized in the IDF by religious obscurantists. It is questionable whether there would be a Knesset majority to stand behind Education Minister's Gideon Sa’ar's decision to forbid separate and unequal elementary schools for Ethiopians in Petah Tikva or to overturn the segregation of Sephardi ultra-Orthodox girls from their Hassidic classmates in Emmanuel. And the list goes on.

As in most democracies, tolerance, pluralism and respect for minority rights can't always be left to "the people" or, exclusively, to their elected officials.
Alexis de Tocqueville, in Democracy in America, noted that "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Similarly in Israel, the issue is not that the court is called upon to make tough and controversial decisions but that it is politically tone deaf in going about its work. If Israel's Supreme Court is to restore badly needed legitimacy --like its critics -- it too must abjure political gluttony. The country's judicial elites and their supporters need to internalize rather than delegitimize pervasive criticism.

Ultimately, however, Israel's High Court can only be safely revamped not salami-style by the Knesset but as part of an overall reform of the political system.

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