Curb the imperious Supreme Court

Published in The Jerusalem Post, June 12, 2020; and in Israel Hayom, June 14, 2020.

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“Reasonableness” is authoritarian jargon which allows Israeli justices to substitute their own sensibilities for law and government decision-making. Time to legislate limits on the High Court’s reach; or at the very least, enact an override provision. 

Scales of reasonableness? Image by OpenClipart-Vectors from Pixabay

I am a reasonable guy, but I am just about fed up with Israel’s 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 there are 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 Court President Esther Hayut, who follows in the footsteps of former Court President (chief justice) Aharon Barak.

Barak’s Supreme Court 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. Anything is “justiciable,” which means that everything from tax to defense policy is subject to the reproach of the High Court of Justice (which is the Supreme Court sitting in judgement of the government).

The whole enchilada is subject to the personal prejudices and individual inclinations of the enlightened members of the highest bench. They hold the gavel and decide according to their own scale of propriety.

The Court has developed a series of mumbo-jumbo, infinitely pliant concepts to justify this takeover.

“Reasonableness” is a term that runs like a computer virus through the High Court’s decisions over the past two decades. It is authoritarian jargon which allows High Court justices to elastically apply their own sensibilities; to socially re-engineer Israeli society. In their enlightened image, of course.

“Substantive democracy” is another newfangled term that Barak concocted (– as opposed to pedestrian “functional democracy” where the ballot box is supreme). This means that Court takes on itself a made-up responsibility to set “substantive” norms and “standards of decency” for public life, and to apply “broad interpretations” of the law to fit its own perceptions of “values,” “balance,” and “equality” – even if the law books don’t contain any such terms or prescriptions.

Given the current makeup of the Court, decisions that employ such supple and flexible principles invariably are skewed in favor the liberal side of the political spectrum.

And thus, the Court has ruled in recent years with a liberal fist on allocation of JNF land, Palestinian residency rights in Israel, rights of foreign converts to citizenship, Haredi draft deferments and stipends to yeshiva students, commerce on Shabbat, and more.

Further back, Barak’s High Court ruled it “unreasonable” to close the Palestinian Authority’s headquarters in Jerusalem (“Orient House”), despite the affront to Israel’s sovereignty in Jerusalem occasioned by its operation.

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 – which was far more representative of Israeli society than the Court! – had found otherwise.

Fortunately, both these lamentable Court decisions were later circumvented by the government.

The Court found it “unreasonable” that religious Jews be allowed to pray on the Temple Mount because this would disturb the Arabs and require a massive police presence. On the other hand, the Court found it “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 it feasible. 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 Meretz leader Shulamit Aloni the Israel Prize despite a thirty-year career which specialized in attacking and offending the religious public.

It was found “unreasonable” that Religious Zionist Jews operate “acceptance committees” to maintain distinctly homogenous small communities even though is this basic libertarianism, not discrimination. But it is “reasonable” for Bedouins and Arabs to operate “acceptance committees” because they are considered “distinct” and apparently more-kosher communities by the Court.

It was “reasonable” for the Central Elections Committee to ban the right-wing and anti-Arab “Otzma Le-Yisrael” party from running in the three last election campaigns, said the High Court. But it was “unreasonable” to disallow the anti-Israel Joint Arab List from running, including some of its openly pro-terrorist candidates like Heba Yazbak and Hanin Zoabi.

So it was again this week when the High Court of Justice struck down the 2017 Settlements Regularization Law as “unconstitutional,” because it impinges on the land rights of absentee Palestinians and mere cash compensation isn’t sufficient. But it was okay to crush the rights of Israeli Jews and expel them from their homes in Gush Katif with a few pennies of compensation. (The Court refused to intervene in that matter).

So it was two weeks ago when the Court struck down the latest version of an immigration/deportation law pertaining to infiltrators and refugees. So it may be when the Court considers a petition to outlaw the new “Alternate Prime Minister” position.

So it may be when the Court rules on the historic Jewish Nation-State law of 2018, which was passed as a “Basic Law” – meaning that it was meant as supra-Court constitutional legislation. The Court has no right to touch this. Nevertheless, Chief Justice Hayut has convened an 11-justice panel to judge the law’s “reasonableness.”

So it may be when the Court rules soon on a petition from a group of extremist professors to terminate all government funding for gender-separate haredi college programs. Accepting the petition would be a disaster for the slow but measurable movement of haredi men and women into the workforce – which is crucial for the Israeli economy and the future of our society.

What’s next? Well, would a decision by the government to extend Israeli law to security zones and all settlements in Judea and Samaria be a “reasonable” decision? How about the opposite decision – to dismantle all settlements? Or a cabinet decision to cut-off relations with the United States? Which of these decisions would be “reasonable” and which not? The imperious High Court justices will decide, not the electorate, unless something changes.

I think that it would be reasonable for the Knesset to legislate limits on the High Court’s reach; or at the very least, enact an override provision. 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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