An alternative to Israel's High Court of Justice
The High Court must think out of the box and initiate the establishment of a constitutional court.
From time to time the demand is heard in Israel to establish a constitutional court, like the most advanced countries have. Ever since Chief Justice Aharon Barak expanded the right to petition the court, the High Court has been used continually by extremist organizations funded by foreign governments and groups. These front organizations are working, it is said, to change the character of the country. They even manage to have an impact, through the Supreme Court of Israel, on the state's security policy (the route of the separation fence, for example ) and on the country's beliefs, opinions and values, which are not justiciable. Elected officials, not those appointed for their judicial skills, should determine the image of the state and its values.
Of course, the High Court justices, like the organizations that "feel at home" in the High Court - and their supporters in the media and academia - oppose a constitutional court. No one is prepared to give up the power to mold the state according to their values. More than a decade ago, when such a proposal was seriously raised, Barak crusaded against it, causing it to be dropped.
Now it turns out that Barak's constitutional revolution ("everything is justiciable" ) has turned on him. The proof is in clear-cut public opinion polls, which reveal a sharp decline in the public's faith in the High Court. One of the ways to restore faith is for the High Court to distance itself from the torturous path along which it has been led over the past two decades, and withdraw its opposition to the establishment of a constitutional court.
Thus, the Supreme Court will deal only with what it was intended to deal with from its inception, and will divest itself of the addictive power it has taken without authority and without legislation.
The need for a constitutional court became even more important after the extreme responses, this time from the left, to the recent ruling on the Citizenship Law. The Supreme Court bench, after the retirement of Dorit Beinisch and Ayala Procaccia, has now been variegated. It will probably no longer be - certainly not automatically - the "home court" of B'Tselem, Adalah [Legal Centerfor Arab Minority Rights in Israel], and the Association for Civil Rights in Israel. And if a case comes before it like that of the Migron outpost, it will send Peace Now first to the Magistrate's Court, where land disputes are adjudicated.
When the High Court acts in such a way, rather than the way it acted during Beinisch's tenure as court president, the left will raise a hue and a cry. Every verdict will be weighed by the public reaction it evokes rather than by its merits. What do the justices need that for?
One ruling that did not suit the extreme left was enough to engender unbridled responses. The High Court, MK Dov Khenin (Hadash ) said regarding the ruling on the Citizenship Law, is based on "the opinion of an extremist minority from the United States of McCarthy." Zahava Gal-On (Meretz ): "The High Court is reeling...it has granted draconian legitimization to discrimination."
Yitzhak Laor in an article in Haaretz wrote that the decision "...has closed a chapter in the life of Israeli democracy." The Association for Civil Rights in Israel, with a great kick at the bucket of milk it has milked from the High Court over the years, added: "The majority of the High Court approved a racist law...this is a black day for the protection of civil rights in Israel and for the High Court."
Criticism from the right is not delicate, either. MK Yariv Levin (Likud ) said recently that "the High Court is stopping a leftist agenda, which is a danger to our ability to ensure our existence...the High Court has been taken over by an extreme leftist minority that is trying to dictate its values to the whole society." It should be added: Many in the center, and not only on the right, share Levin's opinion.
The new composition of the High Court will no doubt lead to increased attacks from the left. Because of the extensive presence of the left in the media, these reactions will be noisy and destructive. The right will not desist from its reaction to the left's outcry. The High Court must therefore think out of the box and itself initiate the establishment of a constitutional court.