The ‘unreasonable’ Supreme Court

Published in The Jerusalem Post on June 25, 2000

I’m a reasonable guy, but I’m just about fed up with our Supreme Court. It has gone beyond the limits of ‘reasonable’ intervention in Israeli political and public life with its ever-expanding scope of super-subjective decision-making.


In normal democratic societies, you see, they have elected parliaments which set legal norms, based on society’s limits of acceptable or reasonable behavior and the communal values that lie behind them. Not so in Israel. We have President Aharon Barak.


Justice Barak’s Supreme Court has effectively stripped Israeli law of any inherent meaning and created complete legal mayhem. There are no truths, no absolute values, no clear cut legal precedents. Past legal experience is no guide; political decisions have no intrinsic validity. Everything is subject to the reproach of the High Court; to the subjective whims, personal prejudices and individual inclinations of Justice Barak and his enlightened colleagues.


Indeed, ‘balance of interests’ and ‘the boundaries of reasonableness’ are the mumbo-jumbo, elastic, infinitely pliant terms that run like a computer virus through the High Court’s decisions over the past decade.


‘Reasonability’ is authoritarian jargon which allows our High Court justices to substitute their own sensibilities for the law or for government decision-making. The power to set the ‘boundaries of reasonability’ which the Court has arrogated to itself essentially empowers Justice Barak, in his own words, to “socially re-engineer” Israeli society. In his ‘enlightened’ image, of course.


In recent years, Barak’s High Court has ruled that it ‘unreasonable’ of the government to order the closing of Orient House, despite the affront to our sovereignty in Jerusalem occasioned by its operation and despite the PA’s violation of agreements in this regard. The Court ruled it ‘unreasonable’ to compromise and close Bar-Ilan Street in Jerusalem for several hours on Shabbat, despite the fact that a public committee of prominent religious and secular Jews – far more representative of Israeli society than the Supreme Court! — had found otherwise.


It was ‘unreasonable’ for the representative Censor Board to block the staging of Yitzhak Laor’s repulsive play “Efraim Returns to the Army”. Why? Because we are an “enlightened democratic society”, said the Court. “Enlightened” is now a Court-determined legal standard, not a subjective and infinitely-malleable value judgement.


It was unreasonable of the Prison Authority’s parole board and the President of Israel to shorten the sentence of Yoram Skolnick, a Jew who murdered Arabs. “I suspect political motivation here”, Barak outrageously wrote in his judgement. Barak, of course, has ruled it perfectly reasonable to free Arab murderers, on more than one occasion, as part of our Oslo deals with the PA. No suspect ‘political motivation’ there, I guess.


It is unreasonable to spank kids, the Court has ruled, or to uphold standards of uniformity on monument inscriptions in military cemeteries. When there were eight or ten thousand haredi boys getting draft exemptions the Court ruled this reasonable, several times. But when the number grew to twelve thousand or more this became ‘unreasonable’ and was ruled illegal. Again, this is ‘law’, not a subjective value judgement, you understand?


It is reasonable to allow the Women of the Wall to pray in a manner offensive to most worshippers at the Western Wall, despite the disturbance involved and the massive police presence require to make this feasible. On the other hand, the demand of religious Jews to pray on the Temple Mount is unreasonable because this would disturb the Arabs and require a massive police presence. Get it?


It was unreasonable to give distinguished editor Shmuel Schnizter the Israel Prize because of one offensive column he wrote over the course of a sterling thirty year career in journalism. But it was reasonable to give Shulamit Aloni the Israel Prize for public service, despite a thirty year career which specialized in attacking and offending the religious public.


What’s next? Well, was the government decision to pull out of Lebanon a ‘reasonable’ decision, given the risks and costs involved? Would a decision by the Prime Minister and IDF Chief of Staff to dismantle West Bank settlements be a ‘reasonable’ decision, given the penalty incurred to people living there? How about a cabinet decision to cut-off relations with the United States? Would that be ‘reasonable’? Justice Barak will decide.


There are no limits, at present, to Justice Barak’s ability to intervene in all these matters as he sees fit. Everything is judicable (a Barak innovation) and everything is subject to Barak’s personal ‘Richter scale’ of propriety.


Israeli political and legal life thus has become completely unpredictable, because what is right and what is wrong depends on Aharon Barak’s personality. As the recent Katzir decision shows, Barak feels perfectly fine about changing his mind or mood or conscience every once in a while, and concomitantly reordering-in-a-flash significant tracts and principles of Israeli law or national policy.


I think that it would be reasonable for the Knesset to legislate limits on the High Court’s reach. Don’t you?

David M. Weinberg is a think tank director, columnist and lobbyist who is a sharp critic of Israel’s detractors and of post-Zionist trends in Israel. Read more »
A passionate speaker, David M. Weinberg lectures widely in Israel, the U.S. and Canada to Jewish and non-Jewish audiences. He speaks on international politics and Middle East strategic affairs, Israeli diplomacy and defense strategy, intelligence matters and more. Click here to book David Weinberg as a speaker

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