Friday, March 14, 2008

This is a continuation of my review of the IDI's constitution. The review begins in the previous post.
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The elimination of all the usual safeguards against judicial hyper-activism, with the exception of the unusual appointments process, was carried out by the Court itself. The Court is well aware, however, that many of these safeguards could easily be put back in place by legislation. The threat of such legislation is the last remaining constraint on the Court.

The most effective way to eliminate this threat would be to enshrine the Court’s self-assigned powers in a constitution that would be almost impossible to amend. The Israel Democracy Institute, in coordination with the Court, has invested a great deal of effort and resources to achieve precisely this goal.

The constitution proposed by the IDI covers the standard three central areas generally covered by constitutions: basic principles, rights and structure of government. Overall, the document breaks little new ground and is surprisingly flabby, generally failing to distinguish between genuine constitutional material and niggling details best left to statute. The general thrust of the particularist (Jewish) elements in the principles section is (as we shall see below) reflective of a secular-left semi-Zionist mindset, with a few bones tossed in the direction of the religious and the Arabs.

But all that is beside the point; it is merely an exercise in jumping through the hoops without arousing the rabble. The core of the proposal, indeed its purpose, is the power it grants to the judiciary. It does so in five ways:

  1. The existing appointments process is enshrined in the constitution.
  2. The Supreme Court is explicitly authorized to disqualify laws as unconstitutional, with no restrictions.
  3. The Supreme Court is explicitly authorized to issue writs against any public body, with no restrictions.
  4. A long list of rights, many of them amorphous and poorly defined, is enshrined in the constitution and serves as a basis for the above two court powers.
  5. The constitution can be amended only with the support of 80 MKs.

In short, the IDI constitution gives a self-appointing court broad powers of unchecked judicial review of both legislation and executive action based on an infinitely malleable set of rights and with no mechanism for amending this system.

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One of the positive effects a constitution can have is to establish consensual guidelines on certain very contentious issues in order to limit the divisive impact of public debate regarding those issues. This is especially important with regard to issues best settled through compromise rather than judicial fiat.

Clearly the most divisive issue in the public sphere is the Jewish character of the State – both in the national sense and the religious sense. The very fundamentals of Zionism – that Israel is the national homeland of the Jewish people, that Israel strives for the welfare of Jews everywhere and for the preservation and advancement of Jewish culture, that Israel encourages Jewish settlement – should be enshrined in the constitution as a matter of principle and education. But more than that: these values are directly threatened by provisions of the constitution and by the wide berth given to the Court to interpret those provisions. The only way to protect these values from constitutional attack is to confer upon them explicit constitutional protection. They do not appear in the IDI’s proposal, either explicitly or implicitly. (One issue regarding which the IDI’s constitution does take a firm stand is that of citizenship. It establishes that spouses of citizens (ineligible for the Law of Return) must be granted citizenship, a provision that explicitly contradicts both recent Knesset legislation designed to prevent hostile immigration and recently established policies of many European countries.)

With regard to religious matters, the IDI proposes an interesting arrangement in which a small number of core issues are partially immune from constitutional review – the Court may not rule certain laws unconstitutional and “is not obligated” to interpret them in light of the constitution. Ostensibly, the idea is to remove the Court from intervention in these sensitive matters so that the legislature could find solutions. The sentiment is a good one but the execution is lacking. First of all, it presumes the good will of the Court in respecting the spirit of the provision. The Court does not need to use the constitution to disqualify legislation on these matters since it can still use existing Basic Laws for that purpose if it so desires. And, of course, the mealy-mouthed phrase “is not obligated” does not in any way restrain a Court that does not seek to restrain itself.

Moreover, in exchange for this toothless provision, regarded by the IDI as a major concession to the religious camp, the IDI constitution provides for a complete ban on religious legislation. Regardless of what one thinks of the dubious merits of religious legislation, the chilling effect of such a provision on public discourse must be appreciated. Every item of legislation will need to be defended against the charge that it is religiously motivated; it will have to be defended on grounds of socialism, feminism or any other quasi-religion, just so long as it isn’t an actual religion.

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In conclusion, a constitution can serve a useful purpose in a fractured society. It can establish consensual ground rules and unifying principles that can blunt the acrimoniousness of public debates. This technique can only work effectively if the constitution creates mechanisms that encourage compromise and mutual trust and that encourage citizens to assume the burden of self-government rather than fobbing this responsibility off on self-styled experts happy to infantilize them.

Legislatures, not courts, are designed to reach compromises. Legislatures, not courts, are answerable to the people. A constitution that amplifies the power of the court, without including appropriate safeguards, discourages compromises and weakens public trust. Courts play a vital role in democratic society but if they assume authorities best vested in elected branches, they will break under the burden.

Each of the branches of government must assume authority in a manner that maximizes the effectiveness of checks and balances at achieving fair and sustainable arrangements. Those who wish to enhance the power of one branch of government at the expense of another branch simply because they believe that such a maneuver is likely to advance some particular political or ideological vision will neither achieve their goal nor strengthen democracy.

Democracy must be protected not only from tyrants but also from those who take its name in vain.

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