Thursday, September 14, 2006

The Israeli Supreme Court

Today Supreme Court President Aharon Barak is retiring to accolades and his successor Dorit Beinish is being sworn in. As someone who grew up in the US I have a number of major problems with the Supreme Court in Israel:

1. Israel as opposed to the US has no Constitution and therefore it is absurd for the judges to annul laws as unconstitutional. Barak, bases himself on a set of "Basic Laws" which he gives the status of a constitution. The problem is that the Basic Laws were not intended as a Constitution and were not subject to national debate or passed by a referendum or other democratic process which would give them widespread legitimacy. In fact, they were passed in committee by a fraction of the Knesset. In addition unlike other constitutional documents, a simple majority has the right to amend these "Basic Laws" as opposed a super majority or referendum as standard practice in other countries. In 1992 the Knesset passed the first two Basic Laws which related to rights; the basis of the Supreme Court's recently declared powers of Judicial Review. These were passed by votes of 32-21 and 23-0, respectively. Imagine, a grand total of 23 MK's passed a law which suddenly has the status of a Constitution.

2. The Supreme Court has nominated itself as the moral arbiter for Israel. Imagine this. The Prime Minister wants to appoint someone as an advisor on terrorism. The man has never been convicted of a crime but was involved in an incident in which captured terrorists were killed. The Supreme Court disallowed his appointment because he was not morally fit. Did the PM break a law? No, and therefore who gave the SC the right to nix appointments. Where is the legal issue? Why should the Supreme Court decide what is moral or what is not. In anothe rincident then Air Force commander Dan Halutz made a statement about how he feels when innocent civilians were killed. He was hauled in front of the SC to explain his statement. What law did he break? What right did the SC have to judge him? Why should they decide if he is moral?

3. The Supreme Court is a self selecting body. The panel that appoints judges has a majority of SC justices on it and therefore they can veto any candidates they don't like. Ruth Gavison, a brillian legal scholar was vetoed by the Barak and cronies because she disagrees with his legal philosophy. What this means is that the Supreme Court never changes or gets new ideas.

4. Everything is adjudicable. This has created a dictatorship of the courts. The SC gets involved in every issue and is the ultimate arbiter. Issues that have no relation to law are decided based on the justices (left wing) world view. Again, no one where else in the world is this so. Given that Israel has no constitution this is even more striking.

5. The system for picking the President is ridiculous. The most senior sitting justice becomes President whether he/she is the most qualified candidate or not. Why don't we pick the PM like that? The answer is very simple. Longevity does not mean that a person will be a good President.

6. Everyone has standing. In Israel any Joe Shmo can appeal anything he wants to the Supreme Court. I can go to the Supreme Court tomorrow and appeal that a certain person not be allowed to be a minister. In every other country there are strict rules of standing. The situation in israel creates chaos, where all kinds of organizations are constantly appelaing to the SC.

1 comment:

The Observer said...

The standing question is even worse than you put it, because it isn't just a question of appeals. The Supreme Court, in its guise as the High Court of Justice, is a court of first instance! In most other systems there is a heirarchy of courts and everything starts at the bottom and is appealed upwards. In Israel you can just start at the top and the issue is instantly decided without review by a court that has all the previous problems you list. The thing is just insane.