Monthly Archives: May 2006
What grabbed headlines was Barak’s citation of Justice Minister Haim Ramon’s prediction that were the Knesset to extend the current Citizenship Law unchanged, the High Court of Justice would overturn it. That, however, was hardly news to anyone who read last week’s 6-5 ruling upholding the law, since one of the majority justices stated explicitly that he considered the law unconstitutional, and refrained from striking it down only because it expires in two months anyway.
What was truly noteworthy about the e-mail was the insight it offered into how Barak makes decisions: not by interpreting the law, but by creating new laws in the Knesset’s stead.
The e-mail, to a friend at Yale University, analyzed the court’s decision on the Citizenship Law, which bars Palestinians married to Israelis from moving to Israel if they are below a certain age, on the grounds that the Palestinian terror war against Israel makes them security risks. In the e-mail, Barak described his own ruling on the case as follows, according to a Hebrew translation published by Haaretz: “In my ruling, I determined that the right to family life is a constitutional right of the Israeli spouse and his children. This right includes not just the right to marry, but also the right to live in Israel. I also determined that the law discriminates against Arabs, since all the Israelis who seek family unification with West Bank residents are Arabs. Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.”
IN OTHER words, instead of examining Israel’s “bill of rights” – the Basic Law: Human Dignity and Liberty – and trying to determine what rights the Knesset intended it to confer, Barak decided what rights he thought it ought to confer, and then searched for something in the text vague enough to accommodate his desires.
Specifically, he first decided that Israelis ought to have the right to live with their spouses in Israel. Then, since no actual article of the Basic Law confers this right, he decided to substitute himself for the Knesset and add it to the law, by declaring it “part of the right to human dignity.” But Barak did not even stop at creating rights that the Knesset never envisioned. Instead, he created rights that it had explicitly rejected.
Even before the Citizenship Law was amended to restrict Palestinian immigration through marriage, Israeli marriage law was extremely restrictive. Under it, marriage is controlled by each faith’s religious establishment. Thus interfaith marriage, for instance, is impossible, because no legal authority is competent to perform it. Jews who want to marry Christians must do so overseas.
The Knesset discussed this issue while deliberating on the Basic Law, but in order to secure broad religious support for the law, it decided to leave the religious monopoly on marriage intact. In other words, the legislature deliberately decided that the law would not give Israelis the right to marry whomever they pleased. But Barak disagreed with this decision – and since he believes that the court has a better right than our elected representatives to determine the contents of Israel’s “constitution,” he decided to legislate a “right to marry” from the bench.
THE SAME holds for equality: The Knesset discussed this issue and deliberately decided to leave equality off the law’s list of rights. But Barak disagreed with this decision, so he legislated this right from the bench.
Moreover, he gave this “right” a far more expansive definition than the norm in other Western democracies. According to Barak, Israel cannot bar entry to enemy nationals during wartime – something all Western democracies do – because only one particular segment of the population, Israeli Arabs, happens to want to marry these enemy nationals. In other words, even though the law’s intent is not discriminatory – it is aimed not at Israeli Arabs, but at enemy nationals – it is unconstitutional because it affects one segment of the population more than others.
Yet by that standard, numerous laws, both in Israel and in other democracies, would be unconstitutional. Israel’s ban on polygamy, for instance, would be unconstitutional, because only the Beduin actually practice polygamy. So would Denmark’s law barring teenage marriages with noncitizens, since Muslim immigrants are the only Danes who typically marry teenagers from abroad. And so forth.
But for all Barak’s outrageous usurpation of the Knesset’s prerogatives, the fault, as MK Michael Eitan (Likud) aptly noted last week, ultimately lies with the Knesset.
First, had the Knesset not legislated such impossibly vague laws – what, for instance, does the right to “dignity” actually mean? – the justices would find it harder to “interpret” these laws to mean whatever they please. And second, the Knesset has almost never responded to such judicial power grabs by passing amendments to reassert its own interpretation of the Basic Law. That is what Eitan is now proposing in response to the Citizenship Law ruling: amending the Basic Law to state explicitly that it cannot be used to overturn legislation on such fundamental policy issues as immigration, citizenship and personal status.
Clearly, this is not an ideal solution, since “constitutional” legislation should not be riddled with particularistic exceptions. Yet given that the Knesset has allowed the court to legislate from the bench without hindrance for years, this may be necessary to restore the proper balance between the two branches of government. Only by swiftly countering judicial overreach through legislation can the Knesset send the message that it will no longer tolerate such power grabs.
As Eitan correctly said, the court’s “cynical, exaggerated and baseless use” of the Basic Law in this case is ultimately “the rotten fruit of a weak Knesset that is not maintaining its basic powers.”
One can only hope that he will succeed in rousing his colleagues to finally take a stand against such judicial usurpation.
Ostensibly, Sunday’s 6-5 ruling upheld the current law, which bars Palestinians below a certain age from immigrating on the grounds that the Palestinian terror war against Israel makes them security risks. Yet in fact, six of the 11 justices declared the law “unconstitutional,” saying it unacceptably infringed on Arab Israelis’ right to marry Palestinians and live with them in Israel rather than elsewhere. The only reason Justice Edmond Levy sided with the majority in declining to annul the law was that since it expires imminently, he considered it sufficient to inform the Knesset that absent major changes, the court will overturn it next time.
In other words, a majority of the court declared that the government has no right to bar immigration from hostile areas during wartime – something almost every other Western democracy does, and a key element of the government’s proposed comprehensive immigration bill – because the individual’s “right” to live with a non-Israeli spouse in Israel takes precedence over the state’s right to protect seven million other citizens against terrorism.
Moreover, having accorded this “right” – which appears nowhere in any Knesset legislation – supremacy over laws actually passed by the Knesset, the justices are equally unlikely to approve the other elements of the proposed immigration reform.
The proposal calls for bringing Israel’s policy into line with the European trend by imposing various restrictions on immigration through marriage, including quotas, age restrictions and means tests.
Yet on what grounds could the court approve such harsh restrictions on a “right” that it has already declared trumps competing considerations such as security? Justice Minister Haim Ramon’s proposed solution is to enact the reform not as ordinary legislation, but as a Basic Law. This, according to the court’s own rulings, would grant it constitutional status, thereby barring the justices from declaring it unconstitutional. Yet in fact, even this might not suffice – because, in a breathtaking pronouncement in last week’s ruling on the Tal Law, Supreme Court President Aharon Barak asserted that the court could even overturn a Basic Law if the justices deemed it contrary to Israel’s Jewish and democratic character.
This is a power grab of gargantuan proportions. After all, the entire justification for the court’s “right” to overturn Knesset legislation was its assertion that the Basic Laws had constitutional status, and ordinary legislation that contradicted them was therefore unconstitutional. That assertion was dubious in itself, given that the Basic Laws underwent no constitutional ratification process and were approved by a mere quarter of the Knesset.
YET NOW, Barak has declared that the court is even authorized to overrule the “constitution”!
Given all this, it is clear that neither immigration restrictions nor any other policy disliked by the justices has any chance of being upheld by the current court. However, the government currently has a rare chance to significantly alter the court’s composition: Four of its 14 seats are now vacant, and a fifth will open shortly, when Barak retires. That is enough to create a solid majority that would uphold immigration reform, and even a sizable bloc that would favor less judicial intervention in policy in general.
However, this is possible only if the judicial selection process is radically overhauled – because today, the justices essentially select their own replacements, so any new appointees will almost certainly share the current majority’s views.
Currently, new justices are chosen by a nine-member panel consisting of two ministers, two Knesset members (one coalition and one opposition), two Bar Association representatives and three sitting justices, including the court president. This structure would inevitably let the justices dominate the process even without the ironclad tradition whereby other panel members defer to them: The justices, chosen by the court president, consistently follow his lead; the elected officials are divided, coalition-opposition; and the Bar representatives are reluctant to antagonize justices who will decide their future cases.
The result is that never has a new justice been chosen over the sitting justices’ objections, and only rarely have the justices’ candidates been rejected.
Moreover, both Barak and his designated successor, Dorit Beinisch, belong to the court’s radical wing: Both voted to overturn the existing Citizenship Law; both hold extremely expansive views of the court’s right to overturn government policy in general; and both openly oppose the appointment of anyone who believes that the court should show more deference to the elected government. A selection panel dominated by either one is therefore certain to appoint justices with similarly radical views.
THUS IF the government is to have any hope of enacting immigration reform – or any other policy frowned on by the current justices – it must reform Israel’s judicial selection process to bring it into line with those of other Western democracies.
In other democracies, the appointment of justices is left entirely to the executive and legislature; the justices themselves have no say in the matter. And this is essential to maintain a proper balance between the three branches of government. Otherwise, the enormous power that the court derives from being the ultimate arbiter of legality, combined with the justices’ complete independence once appointed (since they receive lifetime tenure, they need not curry favor to retain their positions), would leave the elected branches powerless against the justices’ whims.
That is precisely the situation in Israel today: When the court denies the elected government the ability to set policy on an issue as fundamental as immigration – based on a self-created “right” anchored in no law whatsoever – the balance of power is clearly grossly skewed in the court’s favor.
But only by radically reforming the judicial selection system can this imbalance ever be corrected.
Over the past few weeks, EU member states and institutions have raised various ideas for circumventing the boycott.
France suggested establishing a World Bank fund that would pay salaries to Palestinian Authority employees directly; this would substitute for the old system under which the EU gave money to the PA and it paid the salaries. Britain also proposed paying PA employees’ salaries directly, via a nonprofit organization, the Holst Fund. And the European Commission suggested giving the money to PA Chairman Mahmoud Abbas, who belongs to the rival Fatah party rather than Hamas, so that his office could pay PA salaries instead of the Hamas government.
All three proposals also included funding for specific governmental activities; again, the money would simply be disbursed by the World Bank/Holst Fund/Abbas instead of the Hamas government.
The goal of these plans is to ensure that most or all PA employees (some of the proposals exclude certain personnel) continue receiving their paychecks as usual, and that the Palestinian government basically continues operating as usual. Yet that would undermine the boycott’s raison d’etre – which was to exact a price from Hamas for its refusal to renounce terrorism and recognize Israel.
To retain power, the Hamas government must prove that it can function. The conventional wisdom is that the Palestinians ousted the previous Fatah government because of its corruption and inefficiency; if this is true, a Hamas government incapable of providing basic services would presumably be equally unattractive.
But under the EU proposals, government operations would be unimpaired by Hamas rule: Salaries would continue to be paid, and services would continue to be provided.
The idea that how the money is routed matters to anyone is laughable: From the Palestinians’ perspective, as long as the government is functioning, Hamas is doing a fine job, regardless of whether it makes salary payments itself or persuades the international community to make them in its stead.
MOREOVER, since money is fungible, Hamas would even have funds left over for its own agenda. With donor states paying government salaries and covering the operating expenses for big-ticket items such as schools and hospitals, Hamas would be free to use those funds in its possession – the PA’s independently collected tax revenues plus any donations from Arab or Muslim states – for other purposes.
Thus the EU’s claim that such a system would prevent money from being diverted to terrorism is ludicrous: By funding government operations, the EU absolves the Hamas government of the need to use its own revenues to provide basic services, and it thereby makes these revenues available for terror instead.
Unlike the EU, the US had hitherto seemed to understand that the boycott was meaningless if the world continued to finance the entire Palestinian government. Thus while Washington favored genuine humanitarian aid, such as essential drugs for hospitals, it correctly argued that paying government employees’ salaries did not qualify.
For this reason, it initially vetoed all the EU proposals, and even managed to forestall Arab donations to the Hamas government by warning banks that since Hamas was a terrorist organization, transferring such funds would violate US law.
The implicit threat – that banks that handle such transfers could face legal action, or even be forced to abandon one of the world’s leading financial centers – has reportedly caused even Arab banks to refuse to do so.
However, this impressive American determination apparently could not survive the mounting outcry from Europe, the media and nongovernmental organizations about the growing “humanitarian crisis” in the territories: At a meeting of the Quartet on Tuesday, Washington agreed to “a temporary international mechanism” for aid to the Palestinians; and while the details are still under discussion, the arrangement will reportedly include salary payments to PA workers as outlined in the various European proposals.
SHAMEFULLY, even Israel has recently been waffling on this issue – which undoubtedly contributed to America’s capitulation.
Asked for comment on French President Jacques Chirac’s proposal, Foreign Ministry spokesman Mark Regev told the Associated Press that no aid should go to the Hamas government, but “everyone understands that the Palestinian people should not be made to suffer because of the shortsightedness, stubbornness and extremism of their government” – a statement that implies support for ideas of this ilk.
Indeed, the minute one accepts this distinction between “the people” and “the government,” the battle is already lost – because unlike in a dictatorship, where such a distinction is valid, the Palestinian people chose this government freely.
Nor, contrary to the accepted wisdom, did they do so solely as a protest vote, despite disagreeing with Hamas’s political positions: In fact, a poll conducted in Ramallah two weeks ago found that 63 percent of Palestinians support Hamas’s refusal to recognize Israel.
To say that ordinary Palestinians should not suffer because of the government they themselves elected, and whose objectionable policies they continue to support, is thus to ensure that they have no incentive not to reelect Hamas in the future.
Agreeing to fund PA salaries and other governmental activity would make a mockery of the international aid boycott and facilitate the Hamas government’s survival. And by proving that a policy of Islamic extremism entails no long-term price, it would also encourage the election of similar governments elsewhere in the Middle East.
Thus, for its own sake as well as Israel’s, one must hope that the US will rethink this disastrous idea before it is too late.