It is entirely unfitting for sitting justices to take public positions on proposed legislation. If they arrogantly choose to overstep their authority, they ought not be deceptive with the information they present to the public.
The closing of the mind to facts that contravene beliefs, often associated with religious zealots, is alive and well among those vehemently opposed to any curtailment of the extreme power seized by the Supreme Court following Aharon Barak’s “Constitutional Revolution.” This was again on display at the convention of the Israel Bar Association recently.
Speakers at the convention, including former Chief Justice Miriam Naor, lambasted proposed legislation, referred to as the “Override Law”, which would provide some mechanism for the Knesset to override a court decision invalidating a Knesset law. This, whether via an absolute majority of 61 Knesset votes or some higher supermajority.
Their earnest concern was that Israel will cease to be a democratic nation and that its courts will not be independent or respected if an “Override Law” is passed. Would any of them question whether England, which has no written constitution and whose courts lack power to nullify laws of Parliament, is a democratic nation or not? Can one seriously argue that English courts are not independent and counted among the most respected and oft quoted courts in the world?
Inane warnings about the threat to Israel’s democracy and society, always delivered with arrogant certitude, evoke the ethical standards of George Costanza who advised Jerry Seinfeld, “Remember, it’s not a lie if you believe it.”
In her comments at the recent swearing in ceremony of new judges, the current Chief Justice, Esther Hayut, repeated the litany of catastrophes that would ensue from the “Override Law” and added one substantive argument, that Israel’s Supreme Court was far more restrained and less activist than the US Supreme Court. As proof of this assertion, she said that in the 25 years since Israel enacted the Basic Law: Human Dignity and Liberty, the Israeli Supreme Court has annulled 18 laws, while the US Supreme Court had nullified 50 laws. A form of this claim is regularly repeated by The Israel Democracy Institute.
Hayut’s invoking of the US Supreme Court as a worthy barometer for comparison highlights the obvious. US Supreme Court justices, like all federal judges, are nominated by the President, must be approved by the Senate and are often explicitly asked about their judicial philosophies during the approval process. Yet Hayut does not question the bona fides of the US democracy or the strength and independence of its courts. Why then does Hayut so vehemently oppose, again raising the specter of a threat to Israel’s democracy, any change in the selection process of judges that would increase the involvement of elected officials or reduce the near veto power that sitting judges have over candidates they strongly disfavor?
As to the substance of Hayut’s comparison, starting with the obvious, the United States, unlike Israel, has a bona fide constitution, drafted during a three-month process by representatives of 12 of the 13 then extant states, including a who’s who of the US founding fathers. Only after nine months of a great national debate was the US Constitution ratified by the supermajority of state legislatures required by the rules of the Constitutional Convention, and eventually approved by all thirteen states.
Second, many proposed laws in Israel are aborted at their earliest stage because of threats by the attorney general not to defend legislation because of purported “constitutional defects.” This dangerous, common place phenomenon in Israel is an extreme rarity in the United States.
Hayut’s citation of the comparative number of laws rejected by the highest courts in Israel and the United States is meaningless without also referencing the number of laws passed by each country’s legislative body. It would be akin to arguing that the United States has a birth rate many times higher than Israel because of the much greater number of babies born in America.
In the 25 year period referenced by Hayut, there have been approximately 420 laws passed by the Knesset, compared with over 5100 laws passed by the US Congress. Thus, while the US Supreme Court found less than 1% of US laws unconstitutional, Israel’s Supreme Court invalidated more than 4% of Knesset laws (with an appreciable higher percentage in recent years). Hayut was off by a factor of 12. It is entirely unfitting for sitting justices to take public positions on proposed legislation. And if they arrogantly choose to overstep their authority, they ought not be deceptive with the information they present to the public.
The source for the dogmatic opposition to an “Override Law” in any form may stem from the absolute reverence for Aharon Barak and the veneration with which he is held among a large portion of the judiciary and the legal academia in Israel.
It is a matter of debate whether the French King Louis XIV actually said, “L’etat c’est moi” (literally, “The State, that’s me”) but, in the case of the State of Israel and the bona fides of its supposed constitution, Aharon Barak really can say, ‘the Constitution is me.” Indeed, Barak’s near cult-like following allowed him to transmute his image of appropriate constitutional rights and protections into a constitution and simply announce by proclamation the birth of a “constitutional revolution.”
The core of that “constitution” is based on Barak’s interpretation of two laws passed in the final days of the outgoing 12th Knesset. Barak made his proclamation three years after the passage of those laws. The more influential of the two, “Basic Law: Human Dignity and Liberty”, passed with 32 affirmative votes. The second, “Basic Law: Freedom of Occupation”, passed with 23 affirmative votes.
The legitimacy of a “constitution” that derives from a post facto interpretation of legislation that passed with the approval of only 27% and 19% of the members of the legislature is fatally flawed.
Moreover, there is substantial evidence that Barak’s interpretation of the Knesset’s intention was inaccurate. Many of those voting in favor of the two Basic Laws did not intend to create constitutional rights and grant the Supreme Court the power to repeal legislation that, in its determination, violated such newly established rights.
When the Basic Law: Human Dignity and Liberty was submitted to the Knesset for its second reading, Uriel Lynn, Chairman of the Constitution, Law and Justice Committee at the time stated, “We are not shifting the weight to the Supreme Court… No constitutional court is being established with special power to repeal laws…The power remains in this house. And if, heaven forbid, experience with this law were to show that we have made a mistake and that the interpretation given to this law does not overlap the legislator’s genuine intention, the Knesset can change the law . . . I oppose the establishment of a constitutional court because I think that here you give extraordinary power to a limited group of judges, whose interpretation will determine the deletion of laws in Israel.”
When Barak announced his ex post facto interpretation of the Knesset’s action, Michael Eitan, a Likud MK at the time, described what happened the night of the vote. “One day or, more precisely, one night, in perfectly ordinary circumstances, two laws were brought to the vote with less than half of the House members present . . . Nobody mentioned that this was a constituent assembly, nobody spoke about a revolution, and nobody said that a constitutional change was under way. They voted. Only after the fact was it informed of the revolution . . . Those Knesset members who perhaps knew that this was a far reaching step, deliberately concealed the information from the rest . . . This is how you build a constitution? Why was it necessary to deceive the members of the Knesset?”
Barak, who believes that judges, lawyers and legal scholars are part of the “enlightened public” that determines the values of the State of Israel, has acknowledged that ,”the constitutional revolution took place quietly, almost clandestinely.” It requires an incalculable level of hubris and a frightening disdain for one of the bedrocks of a democracy for a chief justice to think it appropriate, even praiseworthy, to slyly impose foundational principles on a nation without the prior approval of its citizenry or at least its elected representatives. The current chief justice, Hayut, like many of her colleagues, seems quite comfortable with that concept.
Were Hayut less extreme and rigidly ideological, she would have enthusiastically supported some form of the “Override Law”, since it would have, for the first time, actually put the imprimatur of the Knesset on the power of the Supreme Court to declare Knesset laws unconstitutional. This would have likely exacerbated, rather than moderated, the abuse of power by the courts and further enfeebled the Knesset.
Ironically, Hayut’s uncompromising opposition to the Override Law leaves open the opportunity for a full and unfettered public debate on what laws we, as a nation and society, want to endow with constitutional status, and how we want those laws to be protected. Let that critical discussion, quashed for decades, at long last begin.
David Kirshenbaum is an attorney in Israel and New York and a member of the Likud Central Committee
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