In the summer of 1996, the ultra-Orthodox press launched an unbridled campaign of attacks on the Supreme Court, claiming, inter alia, that it was carrying out a judicial coup. Amnon Rubinstein, then a Meretz MK, and one of Israel's leading experts in constitutional law, responded at the time that "there has never been such an attack on the court. All that's lacking is for them to declare that [then Supreme Court president Aharon] Barak is subject to din rodef and din moser," referring to two Jewish laws that enable would-be killers to be struck down preemptively). That September, then prime minister Benjamin Netanyahu said that he was considering circumscribing the powers of the Supreme Court. Rubinstein pledged that his party "would mobilize all those forces in the public that support the rule of law in order to create a unified front against the proposal."
It is worth giving some thought to the long road that Rubinstein has traveled in the 10 years between those statements and his recent interview with Ari Shavit, which was published in Haaretz Magazine (in Hebrew). Rubinstein told Shavit that "a dictatorship of the judiciary" has developed in Israel, and that the concepts that make up the rule of law "have become very confused here," and he advised the Supreme Court, now headed by Dorit Beinisch, "not to confront the Knesset directly."
He is not the only one who thinks this way. Political science professor Shlomo Avineri recently published a position paper in which he wrote: "It is appropriate to ask whether the Supreme Court has not contributed to disrupting governmental processes in Israel." On dozens of issues, he said, "the Supreme Court is preventing proper operation of the democratic system." Avineri also attacked an atmosphere in which discussion is silenced, and anyone who seeks to reduce the court's powers "is liable to pay, if not with his life, than with his legal future."
Is discussion really silenced? Law professor and former minister Shimon Shetreet submitted a paper to the Magidor Committee on governmental reform, in which he proposed significantly reducing the Supreme Court's powers. Shetreet proposed that instead of overturning laws, the court, when sitting as the High Court of Justice, should merely be allowed to declare that they contradict the country's constitutional basic laws. He also proposed greatly restricting the right of standing to petition the court. Shetreet's proposals garnered significant support in the committee, but after they were published in Haaretz, they were shelved.
Criticism of the Supreme Court is no longer the province of extremists who are opposed to democracy. It encompasses broad sectors of the public, particularly the conservative public. This public is no less concerned about democracy and its fate than the liberal left. The attempts to put the subject beyond the pale of legitimate discourse are embarrassing. In the end, which portions of the public will be left to consign to beyond the pale, and who will remain inside?
The fact that such senior members of the legal world are attacking the Supreme Court greatly undermines the public's confidence in the legal system and in democracy. It also strengthens the demand to establish a constitutional court that would be appointed by politicians, something that would indeed be a real danger to democracy. Therefore, we must listen to this criticism, discuss it and work to improve the balance among the three branches of government.
The bill proposed by Justice Minister Daniel Friedmann, which would enable the Knesset to override High Court rulings overturning legislation, should not be rejected out of hand, as long as such overrides require a special majority of the plenum rather than an ordinary majority. This is not undemocratic. It is a completely legitimate change in the rules of the game that would enable larger portions of the public to feel that they are participants in it, and it would also institutionalize the court's authority to overturn legislation.
We must also work to make the Supreme Court more representative by appointing more justices who believe in judicial restraint. Several bills have been submitted to the Knesset that would make minor changes in the composition of the Judicial Appointments Committee - for instance, by appointing public representatives. We can and should discuss these proposals. Granted, increasing the conservatives' power on the Supreme Court might well cause those who care about human rights, like this writer, to have trouble agreeing with a significant portion of the court's decisions. Compromises have a price, and sometimes, it is a very painful price. Nevertheless, it must be paid.
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