Civil Fights: Judicial hypocrisy on judicial review

Addressing a conference of the nation’s judges two weeks ago, Supreme Court President Dorit Beinisch offered two explanations for the recent steep decline in public faith in the court: attacks on it by politicians, and what she termed tendentious media reporting. The idea that the court’s own behavior, or that of its leading champions, could be at fault evidently never crossed her mind.

Yet in fact, no verbal assault by ethically challenged ministers like Ehud Olmert or Haim Ramon could possibly undermine public regard for the court as much as the hypocritical behavior of the justices and their adherents does. The uproar over Justice Minister Daniel Friedmann’s bill to limit judicial review, which the cabinet approved on Sunday, is a case in point.

The bill would allow the Knesset to reinstate legislation that the Supreme Court has ruled unconstitutional, as long as this move was approved by at least 61 MKs, with supporters outnumbering opponents by at least five votes. That is an idea one could certainly oppose on its merits. While I personally support the 61-MK override, one could legitimately either object to legislative overrides in general or argue that they should require a larger Knesset majority.

But it is sheer hypocrisy to charge, as former Supreme Court president Aharon Barak did at the Herzliya Conference in January, that such a move would turn Israel into a “Third World country.” It is also sheer hypocrisy to claim, as Beinisch repeatedly has, that limiting judicial review would “undermine the country’s democratic character.” After all, no one knows better than Barak and Beinisch that restrictions on judicial review exist in many Western democracies.

Even Canada – which, judging from his many laudatory citations of it, boasts Barak’s favorite Western constitution – explicitly permits legislative overrides of Supreme Court decisions. And some democracies curb judicial review far more drastically: Holland, for instance, forbids its Supreme Court to overturn legislation at all, while Switzerland bars its court from overturning all federal legislation.

THE LATEST argument raised by the bill’s opponents, however, makes their hypocrisy even more blatant – because while many Israelis may be unaware of how other Western democracies approach judicial review, they assuredly remember Ehud Barak’s negotiations with the Palestinians at Taba in 2001.

According to this new argument, Sunday’s cabinet vote on the bill was illegitimate because the prime minister has already announced he will resign following next week’s Kadima leadership primary, and a lame-duck government has no right to make far-reaching changes; it must confine itself to strictly necessary business. Israel Bar Association chairman Yori Geiron, for instance, declared that approving this bill would violate Attorney-General Menahem Mazuz’s directive that the government, being on its last legs, must be “cautious” about exercising its powers.

Haaretz published both an editorial declaring it “verboten for the government to vote in favor of such a fundamental, constitutional change… during its last cabinet meeting,” and an op-ed by the paper’s legal commentator, Ze’ev Segal, making the same point.

Adherents of this view cite repeated Supreme Court rulings declaring that a lame-duck government must exercise restraint in making major decisions unless delay is untenable. The problem, as all the experts making this argument know perfectly well, is that the seminal ruling on this matter is the one that upheld Barak’s Taba negotiations. At that point, Barak had already resigned, so the restraint incumbent on lame-duck governments certainly applied. Nevertheless, the court ruled that offering far-reaching diplomatic concessions in no way violated this restraint.

Most Israelis undoubtedly remember what Barak offered the Palestinians at Taba: almost all of the West Bank, plus a “safe passage” slicing through Israel to connect the West Bank and Gaza; much of east Jerusalem, including the Temple Mount and most of the Old City; and the absorption of tens of thousands of Palestinian refugees in Israel. Needless to say, these concessions would have been completely irreversible had Yasser Arafat actually accepted them, and even after he refused, they became the starting point for Palestinian demands during the inevitable next round of talks, thereby constraining future governments’ options.

In contrast, the cabinet’s approval of Friedmann’s bill has no lasting consequences at all. For starters, all cabinet approval means is that the government has decided to submit the bill to the Knesset. Since the Knesset will not be back in session until the end of October, the new government that will presumably arise following the Kadima primary could easily change its mind and not submit the bill.

Moreover, submitting a bill to the Knesset in no way guarantees that it will pass; the Knesset has rejected bills submitted by the government before. And even if it did pass, any future Knesset could easily repeal the law, with no more than the same ordinary coalition majority need to enact it to begin with.

BUT EVEN if approving Friedmann’s bill were as irrevocable a step as its opponents falsely claim, Olmert’s government would still have far more legitimacy to take it than Barak’s government did to embark on the Taba negotiations, because Barak went to Taba after having already lost his Knesset majority over that very issue – his conduct of the talks with Arafat. Olmert’s government, in contrast, still has a strong and stable Knesset majority.

For anyone who seriously cared about the issue of preventing lame-duck governments from tying their successors’ hands, there would be no possible way to justify the Taba talks. In contrast, even the very strictest interpretation of lame-duck restrictions would not justify preventing the cabinet from approving Friedmann’s bill, since that decision does not bind the next government at all. Yet needless to say, many of the leading opponents of the cabinet’s decision to approve Friedman’s bill – from the Supreme Court itself to Haaretz – are the very same people who vociferously supported Barak’s right to conduct the Taba talks.

That hypocrisy is clear for all to see. And such hypocrisy does more to damage public faith in the court than even the most vicious attacks by politicians or the media ever could.