Israel's Supreme Court is...Supreme

Recently, I wrote a post about Peace Now's apparent ability to bring law suits despite the fact that they themselves were not a legally recognized association and thus could not be sued in return. (I just noticed that Israel Matzav points out that if so, Americans for Peace Now may be at odds with US tax law.) Soccer Dad was nice enough to email me a link to an article in The New York Times that seems to back this up.

According to the article:

Israel’s Supreme Court has a long tradition of independence. But over the past two decades, largely under the influence of Mr. Barak, 71, it took the ideal of enlightened liberality to new heights. It abolished the principle of standing, meaning that petitioners need not have a direct stake in the outcome of a case they bring. This opened the court up to civil rights groups and a flood of public petitions. Because of a historic anomaly dating from the British Mandate, petitioners appeal directly to the Supreme Court, without the filter of a lower court. [emphasis added]

The article paints the issue as "an echo of the American struggle between conservative and liberal legal theories", which is true enough as far as it goes, but of course there are issues of power as well.

Take for example the review by Richard A. Posner, "Enlightened Despot" of former Israeli Supreme Court Justice Aharon Barak's book The Judge in a Democracy, where the issue of standing--referred to in The New York Times article--is only one example of many:

What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade. (He borrowed from Marshall the trick of first announcing a novel rule in a case in which he concludes that the rule does not apply, so that people get accustomed to the rule before it begins to bite them.) Among the rules of law that Barak's judicial opinions have been instrumental in creating that have no counterpart in American law are that judges cannot be removed by the legislature, but only by other judges; that any citizen can ask a court to block illegal action by a government official, even if the citizen is not personally affected by it (or lacks "standing" to sue, in the American sense); that any government action that is "unreasonable" is illegal ("put simply, the executive must act reasonably, for an unreasonable act is an unlawful act"); that a court can forbid the government to appoint an official who had committed a crime (even though he had been pardoned) or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of "human dignity" a court can compel the government to alleviate homelessness and poverty; and that a court can countermand military orders, decide "whether to prevent the release of a terrorist within the framework of a political 'package deal,'" and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.

These are powers that a nation could grant its judges. For example, many European nations and even some states in the United States authorize "abstract" constitutional review–that is, judicial determination of a statute's constitutionality without waiting for a suit by someone actually harmed by the statute. But only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon's taking the crown out of the pope's hands and putting it on his own head. [emphasis added]

Robert Bork, writing another review of Barak's book gives examples of Barak's "free-wheeling approach." Among them:

A majority of the court held that the government cannot bar immigration from hostile areas during wartime because doing so would infringe on the right of Israeli Arabs to marry Palestinians and to bring them into Israel, rather than living elsewhere. Although the court upheld, six to five, the Knesset law banning Palestinians below a certain age from immigrating on account of their being a security risk; one judge declared explicitly that he had sided with the majority only because the law was due to expire shortly anyway, and he felt it sufficient to warn the Knesset that, barring substantial changes, the court would overturn the law next time. This, again, despite the Knesset’s explicit rejection of a citizen’s right to marry whomever he or she pleases. Thus is national security -- even in wartime -- superseded by an invented personal right that the legislature had rejected.

While upholding the government’s authority to build a separation fence, the court nevertheless overruled the army’s judgment on the purely military issue of the location of parts of the fence, because of disagreement about the minimally adequate level of security. Barak once said that the court has jurisdiction to judge the deployment of troops in wartime; this decision brings it closer to that.

Jonathan Rosenblum has written extensively about the power that the Israeli Supreme Court has aggregated to itself, referring to the court in "The Tide Turns" as "Israel's legal oligarchy" when he writes about the appointment of Tel Aviv University law professor Daniel Friedmann as Justice Minister.

Worse, from the point of view of defenders of Israel's legal oligarchy, are the increasing number of skirmishes that are no longer going their way. The Knesset, at Friedmann's initiative, recently passed a bill that limits the term of the Court President to seven years. At one level, the bill was largely symbolic. It specifically excluded the current court president – Beinsich – from its provisions and did nothing more than bring the practice of the Supreme Court in conformity with all other lower courts in Israel. Yet it sent a clear message from the Knesset to the Supreme Court that the dominance of the court president that existed under Barak will no longer be tolerated.

It is no wonder that Dalia Dorner, a retired Israeli Supreme Court justice is quoted in The New York Times article in reaction to Friedmann's attempt to curtail the court:

All his proposals have a common theme...to emasculate the court and give added strength to the politicians.

Apparently she was referring to those politicians who are not currently members of the Supreme Court.

Technorati Tag: Israel and Aharon Barak and Bork.