Friday, March 14, 2008

In this post and the next, I'll give a review of the IDI's proposed constitution. In the first post, I'll introduce the central problem any Israeli constitution must address and in the following post, I'll explain how the IDI does exactly the opposite of what is necessary. In the post after that, I'll tell you about some ostensibly dati organizations that have joined forces with radical Arab NGOs to attack the IDI proposal from the left(!).
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A constitution provides the answer to one question: who decides what. All the rest is commentary.

In a democracy, ultimately the people – through their representatives – decide. Of course, the people’s representatives are liable to make unjust decisions. Thus constitutions set rules in place that establish certain basic principles that may not be violated. However, this merely begs the question: who will decide when these principles have been violated. If it is anyone other than the very majority against whom we seek protection, the problem becomes more acute. Who will protect us from them?

There is no solution to this problem. Ultimately, every question will need to be decided by somebody and that somebody, whoever he might be, is capable of injustice. The best that democratic societies have managed is to establish balancing mechanisms that distribute decision-making among varied interdependent bodies. In this way, it is likely that self-interested parties among them will at least need to find some modus vivendi with others with competing interests.

Thus, since ancient times, government has typically been divided among three separate but interdependent branches: the legislative, executive and judiciary. The judiciary, in addition to adjudicating disputes between individuals, is entrusted with adjudicating disputes between individuals and the state and hence effectively oversees the other branches of government. This returns us to our predicament: who shall oversee the courts?

Democracies have a variety of mechanisms at their disposal to prevent the courts from assuming too much power. Since the courts must adjudicate independently, the limitations involve the determination of who will do the judging and the issues regarding which their judgment is rendered.

  • Judges with the authority to decide constitutional matters are appointed by the other branches of government, so that ultimately judicial appointees reflect the sentiments of the people.
  • Rules of standing limit the court to resolving specific grievances rather than selectively addressing abstract questions of principle.
  • Rules of justiciability limit the cases the court can hear and, in particular, deny the court the power of the purse and the sword.
  • The standard of unreasonableness required to permit court intervention in acts of the other branches are extremely high in order to prevent the Court from simply substituting its judgment for that of the other branches.
  • The rights that the court can invoke as the basis for intervention are well-defined.
  • The court has no influence over the state prosecution and attorney general’s office, which decide which cases to pursue.
  • The authority to overturn laws is often limited in a variety of ways. Ruling that a law is unconstitutional: is limited to an advisory opinion (England), can be done only during the legislative process by a parliamentary body (France), can be overturned or pre-empted by parliament (Canada), or can be done only by special constitutional courts with openly political character (most European countries).

In Israel not a single one of these safeguards against judicial over-reaching remains in place.
  • Judges are appointed by a nine-person committee, dominated by sitting justices acting in collusion, with no public accountability.
  • The Court intervenes in administrative matters by selectively hearing petitions by public interest groups with no actual standing.
  • The Court hears petitions in matters involving the budget, national defense, foreign policy and other political questions within the legitimate authority of the elected branches.
  • The Court has invented doctrines of “reasonableness” and “proportionality” that are no more than elegant means of substituting its own judgment for that of the elected branches.
  • The court uses amorphous rights such as that to “dignity” to uphold any imaginable right, including the right to import a spouse from enemy territory, the right of children not to be spanked by their parents and the right to have one’s roof reinforced against rockets.
  • The Attorney General, who is meant to be the government’s appointed lawyer, has become the Court’s representative in the government: he is appointed by a committee headed by a judge himself appointed by the Chief Justice, he is inevitably beholden to the Court if he wishes to be appointed to the Court himself, he has been told by the court (Pinchasi) that he is not obliged to defend the government and his decisions are now subject to second-guessing by the Court (Katzav).
  • Finally, the Court has assumed the right to overturn laws without any mechanism in place for determining the conditions under which this is possible.

You will hear from the Court's defenders that judicial activism serves to strengthen rights and to buttress democracy. This claim is not even coherent enough to be wrong. It responds to a question about structure – “what mechanisms of checks and balances are most likely to prevent any branch doing excessive harm?” – with an essentialist answer – “judges are more likely to be zealous in the pursuit of justice and democracy”.

The hallmark of a true democracy is that it does not confuse structural issues with essentialist ones. Essentialist claims of this sort can be made – and frequently have been made – in defense of enlightened despots just as well as in the name of hyper-active courts. In democratic thought, claims that checks and balances be damned, we’re more likely to get a satisfactory result by empowering so-and-so, are rightly understood as naked attempts to privilege so-and-so and its fellow travelers.

Thus, in the specific case of Israeli courts, I leave it to the reader’s judgment whether the courts are more reliable and impartial arbiters of the right and the good than others. The point is entirely irrelevant. The question that needs to be addressed is who should decide matters of public policy: unelected judges or elected officials.

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