The Foundation for Constitutional Democracy

06-Feb-2007

Why the Knesset Tolerates Judicial Imperialism

Filed under: Supreme Court/JudicialKnesset/Legislative — eidelberg @ 1:15 am Edit This

Edited transcript of the Eidelberg Report, Israel National Radio, February 5, 2007.

Part I

At the risk of offending religious people, I am going to argue in Part II of this essay that Israel’s religious parties have unwittingly contributed to judicial imperialism and the secularization of Israeli society. However, to defend this conclusion, I must set forth, in Part I, statements made by eminent Israelis who have denounced the Supreme Court for exceeding its lawful powers and endangering the democratic as well as Jewish character of the State.

Former President of Israel, the late Chaim Herzog: “In a democracy, according to [Justice Aharon] Barak, the courts are placed above the Government. In my humble opinion, this approach endangers, in certain cases, the very basis of democracy.”

Former Supreme Court President Moshe Landau: “How can it be considered democratic to allow an oligarchic body such as the Supreme Court to review decisions that were made in a democratic fashion [by the Knesset]?”

Former Deputy President of the Court Professor Menachem Elon: “The theory [that the Court may intervene in the law-making role of the Knesset] has no basis in reality.”

Attorney Yisrael Kluf of the central committee of the Israel Bar Association: “When the [Barak] Court determined … that everything is justiciable … it took powers that it never had and that were very close to—if not beyond—those of other branches…”

Hebrew University of professor of law Ruth Gavison: “No Supreme Court in the world has taken upon itself such powers… The judges of the Supreme Court represent a particular segment of Israeli society: Ashkenazi secular men. It is not clear why the entire Israeli society must live according to its dictates.”

Hebrew University professor of political scientist Shlomo Avineri: “The Court’s judicial activism … has caused not a small portion of the population—and not only extreme haredim—to view the Court as its enemy.”

Former Supreme Court Justice Zvi Tal: “When the Court must decide between individual civil rights and Jewish values, the former has until now been given the upper hand. This should not be so in a Jewish state…”

Although professor Gavison, like professor Avineri, is a secularist of leftwing leanings, she candidly said: “I do not think it is right for the Court to decide in favor of Western [secularism] and against [Jewish] traditionalism; … I also do not think that it is the Court’s role to be the supreme moral arbiter of society. That was not why it was appointed …There is nothing in the training [of judges] that affords them the right, the authority or the ability to determine moral norms, to be the teachers of the generation.”

I ask: Why has the Knesset allowed the Supreme Court to usurp its own law-making powers? After all, the Knesset has exclusive authority to enact the Basic Laws of the country—including Basic Law: Judiciary. If it wishes, the Knesset could revise that law and put an end to the Court’s judicial imperialism. Why hasn’t it done so?

Doesn’t the Knesset know that Justice Barak’s famous or infamous dictum that “everything is justifiable” makes the Supreme Court the overseer of Israel’s entire government? Doesn’t the Knesset know that this unelected Court has arrogated to itself not only legislative but also executive powers of government? Doesn’t the Knesset know that the Court, untrained in military matters, has vetoed decisions of the Israel Defense Forces and has thereby endangered Jewish life?

Moreover, by ruling that “everything is justiciable,” the Barak Court arrogated to itself the authority to ignore, revise, or reject basic beliefs and values of the Jewish people, hence to change the national consciousness or identity of this so-called Jewish state! Nor is this all.

Part II

In various instances, Israel’s Supreme Court has subordinated Israeli law to the multiculturalism or indiscriminate egalitarianism of various supra-national bodies such as the UN and the International Court of Justice.

Former U.S. federal prosecutor Andrew C. McCarthy warns that this dissolving of national distinctions has become the dominant ideology of American and British courts. He sees this development as a “seismic shift” away from democracy toward oligarchic juristocracy (or rule by courts). A “sweeping infrastructure of so-called international human rights law” is gaining ascendancy. “A world in which the nation-state was geopolitical paradigm and engine of human progress during the past 360 years is giving way to a global order led by supra-national tribunals. Although these tribunals are nominally “national,” they “pledge fealty to the higher calling of “humanity.” “Like other utopian projects, the end of this one is tyranny.”

This is the direction of Israel’s Supreme Court, which remains enthralled to the transnational jurisprudence of Aharon Barak. Under Barak’s overpowering influence, the Court has elevated itself to the status of “Über-Branch,” transcending national considerations to ensure that all the world—including that part of it which is trying to kill Jews and dismantle Israel—has a forum in which to press its case against the Jewish state. The Barak court not only directed the Government to reroute parts of the security fence for the convenience of Palestinians as opposed to the security of Jews; it also adopted the outrageous ruling of the International Court of Justice that Judea, Samaria, and Gaza are “belligerent occupied territory.”

Under this dispensation of supra-national jurisprudence, it has become problematic whether Israel has a right to defend itself. Israel now has to assert this axiomatic and once unalienable right because Israel’s national sovereignty—indeed, the very notion of the sovereign nation-state—is no longer self-evident under the emerging rule of a transnational juristocracy. No longer is it obviously lawful, when the lives of Jews are threatened, for the Government of Israel to kill the aggressors or to erect a security fence against Arab terrorists.

So why has Israel’s Knesset tolerated not only the Supreme Court’s judicial imperialism, but also its injection of multiculturalism into the jurisprudence of the Jewish State of Israel? Why has the Knesset allowed the Court to adopt the moral egalitarianism of “international human rights law,” which cannot but undermine Israel’s national sovereignty and put an end to Israel as a Jewish state?

Here is my answer: Israel’s Knesset is dominated by secular parties whose power or longevity is threatened by the prolific birthrate of Israel’s religious community. Although some MKs oppose the Court’s judicial imperialism, most are non-religious and want the laws of the state to remain secular. This coincides with the Court’s agenda, whose rulings subordinate traditional Jewish values to “international civil rights laws” as indicated by Justice Tal and professor Gavison.

The Knesset allows the Court to secularize the Jewish state because the major secular parties are divided such that none has ever won a Knesset majority or control of the Government. Israel has had nothing but coalition governments whose formation required the participation of one or more religious parties. Were it not for the religious parties, the Knesset might very well curtail the Court’s imperialism. But this means that the religious parties have unwittingly contributed to the Court’s secular agenda!

If there were no religious parties, the secular parties would still compete for religious voters and be disinclined to alienate them. But then the Knesset would have a vested interest in curbing the Supreme Court.

I therefore advocate, but do not expect, the religious parties to self-destruct. However, if the religious parties had the courage and the wisdom, they could turn pubic opinion against the existing system of governance. Polls indicate that 90% of the public despise the Knesset as well as the Government, and the Court’s popularity has steadily declined. Thus, by citing the eminent Israelis I have mentioned, and by exposing the undemocratic character of Israel’s political institutions, as the present writer has done in numerous publications, a well-organized campaign of the religious parties could revolutionize the System and save Israel from its march to further calamities.