Coercing Virtue (13 page)

The first doctrine holds that since law covers everything, even those areas on which the law is silent, freedom from law is a legal issue reviewable by the Court. Since nothing escapes the legal maw, Israel may not allow freedoms of which its Court disapproves. “Constitutional law” about private behavior, therefore, may be devised without the benefit of a constitution. By contrast, in the United States there must be action by government, usually in the form of a legal command, to trigger constitutional scrutiny.

The second doctrine, standing, holds that parties may address a court only if they allege injuries to themselves which the court has the authority to redress. A mere personal or ideological disagreement with government is not enough. President Barak and his Court have done away with that limitation on their power. Anybody who thinks the government is misbehaving in some respect can litigate, even if the alleged misbehavior affects him not at all.
Thus, a citizen with a private grievance against a Cabinet appointee can litigate the worthiness of this person on grounds having nothing to do with any specific injury to the complainant. It is as though a United States citizen, unharmed by an action of the Federal Reserve Board, could go to the U.S. Supreme Court to litigate the wisdom of an interest rate hike.

The doctrine of justiciability, the third on the list, requires that the issues to be litigated must be fit for courts to decide. Barak has reshaped the law so that practically any subject, no matter how political, may be decided by the Court. The issue may be legal or simply one that the Court considers in the public interest. Virtually every subject, then, is justiciable. Barak sees two categories of justiciability – one normative and the other institutional – though he and the Court have little use for any restriction that might arise from such categorization. Normative justiciability raises the question whether legal criteria exist which a court can apply in the case proffered to it. If there are no such criteria, the matter is not one for judicial resolution. Institutional justiciability raises the question whether the subject matter is appropriate for judicial decision or whether some other branch of government may more properly decide the issue.

Normative nonjusticiability is inconceivable in Barak’s world view because no legal void can exist: law covers everything. Legal criteria – which mean no more than the Court’s willingness to decide – always exist. Even an activity bearing the greatest political character, such as the making of war or peace, is examinable by judicial criteria.
The decision whether to intervene or not, however, lies entirely within the Court’s discretion. Institutional justiciability is similarly toothless because, should the Court say that an issue is committed to another branch of government and inappropriate for judicial intervention, the Court essentially grants the government freedom to behave illegally. That is not to be tolerated. The Court, of course, cannot behave illegally, since it is the law.

The extremes to which Barak’s judicial philosophy can carry him is shown by his statement that the deployment of troops in wartime is a justiciable issue. Barak recognizes, however, that the public may not want the Court deciding certain issues. In highly political cases, therefore, such as that involving the Oslo peace process, Barak and the majority of the Court chose to limit universal justiciability and not to intervene directly. A second exception to universal justiciability arises in cases where justice may not seem to be done, but Court action itself would undermine public confidence in the judiciary. These exceptions clearly overlap, if they are not identical. In both instances, however, the Court’s power is not limited by principle, but only by fear of adverse public reaction. This justification denotes concern for the prestige of the Court, not for the integrity of the law or the vitality of democracy.

A comparison with the activist American Supreme Court demonstrates how far the Israeli Supreme Court has gone. The American Court does not hold that law is everywhere. With the sole exception of the Thirteenth Amendment, which bans involuntary servitude (any condition approaching that of slavery), the American
Constitution applies only to action taken by the state, not to its inaction. Although the Court has strained to find state action in cases of racial discrimination, it remains true that most private behavior is beyond the reach of the Court’s constitutional power and must be regulated, if at all, according to laws made by elected representatives in the legislatures.

In the United States, the doctrine of standing has, as its constitutional core, the requirement that the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest that is concrete, particularized, and either actual or imminent. It cannot be merely conjectural or hypothetical. An American federal court could not, for example, entertain a citizen’s lawsuit complaining that a Cabinet member was not fit for her position. The Court has held that taxpayers and citizens lacked standing to sue on the claim that the Constitution required the CIA’s budget to be published, or that members of Congress are constitutionally disqualified from holding reserve commissions in the armed forces. By comparison, when members of a citizens’ rights movement challenged the Israeli justice minister’s refusal to extradite a person wanted for murder abroad, the majority of the Court asserted a new standard by holding that the petition could be reviewed by the Court. The Justices said that, because it was a matter of genuine public concern and no one else in the country had a more direct interest in the case, the Court would hear the petition.

The Israeli Court’s power is further magnified by the ability of litigants complaining about the government to proceed directly to the Supreme Court, rather than
reaching that tribunal after trial and appeal in lower courts. U.S. law about justiciability derives from the separation of the powers of the three branches of government. A court will stay its hand, according to
Baker v
.
Carr
(1961), for several reasons: a textually demonstrable constitutional commitment of the issue to another branch of government; a lack of judicially discoverable and manageable standards for resolving a dispute; an inability to decide without a determination of policy that is clearly of nonjudicial discretion; an inability for the court to decide the case without expressing a lack of respect due to coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; or the potential for embarrassment from multifarious pronouncements by various departments on one question.

The American Court applies these concepts of state action, standing, and justiciability to confine its own power. These self-limiting doctrines are, of course, more complex than a brief statement can indicate, but the nub of the matter is clear: these boundaries on judicial power assist in preserving legislative power and democratic authority.

In addition to this astonishing array of judicial powers, the selection process for the Israeli Court’s Justices, established in 1953, ensures, as Mordechai Haller says, that “in Israel the judiciary selects itself.” The choice of a Justice is made by a Judicial Selections Committee composed of the president of the Supreme Court, two other Justices chosen by that Court, the justice minister, an additional minister appointed by the government, two members of the Knesset, and two members of the Israeli Bar Association.
That makeup, according to Haller, ensures that the influence of the Justices is “nearly absolute” and “it is almost unheard of that a nominee to the high court would be either approved or rejected over the objections of the justices on the committee.” Quite naturally, the Justices prefer candidates with views similar to their own. The result is a Court without serious internal dissension or debate, a Court that agrees with and is led by Aharon Barak.

The activist decisions of the Supreme Court of Israel fall into two categories. The first comprises interventions in the internal operations of the other branches of government. These decisions have been extraordinarily intrusive, perhaps reflecting the belief that the Knesset and the executive are not trustworthy. The second includes rulings on human rights. These decisions display a willingness to substitute the Court’s own extremely liberal New Class values for the moral and prudent choices made by democratic institutions. The Court’s values implement a socialist impulse in cultural and social affairs: they are universalistic in scope and, to the exclusion of competing values, stress such concerns as the dignity, freedom, and equality of individuals. As rhetoric, those words are highly persuasive; as operational concepts, they have often proved highly deleterious.

The Court’s activism became undisguised imperialism when, in a bold and unprecedented stroke, it revolutionalized the internal structure of government – and the
distribution of governmental power – by anointing the attorney general as the supreme authority within the executive branch. In the 1993
Pinhasi
case
(Amitai-Citizens for Good Government and Integrity
v.
The Prime Minister of Israel)
the issue was whether Deputy Religious Affairs Minister Rafael Pinhasi had to resign when he was indicted for tax and party-funding violations. Prime Minister Yitzhak Rabin would not fire Pinhasi because that would endanger the thin parliamentary majority in favor of the Oslo accords. The attorney general, who had sole authority to represent the government in litigation, announced that he would not defend Rabin’s decision. The Court went beyond the legal merits of the case to announce that the government (though not the Court) was bound by the attorney general’s decision – effectively converting that officer into a judge dominating the executive branch from within.

Perhaps not surprisingly, jurists proclaimed the Court’s decision a victory for the rule of law. It is difficult to understand, however, why making a subordinate government official the arbiter of the government’s actions, responsible only to his own sense of discretion, is not the antithesis of the rule of law. The government may have quite respectable legal arguments opposed to the attorney general’s view, but those views cannot be heard by the Court and are set at naught. Still worse, an attorney general’s decision is effectively final even when it is not based in law but is a conclusion about policy. “In Israel, with the world’s most liberal rules of standing and justiciability,” Jonathan Rosenblum noted, “the only party
that cannot get a ruling on the legality of governmental action is the government itself, if the Attorney General refuses to defend the government’s position.”

Pinhasi
was the culmination of a series of aggrandizements by which successive attorneys general expanded the powers of the office. Foremost among them was none other than Aharon Barak, who later wrote the
Pinhasi
opinion when he was on the Court. His prosecution of numerous powerful figures in the Labor Party, including the wife of the prime minister, “did much to cultivate the idea that only a truly independent attorney general, free of any political concerns, could effectively combat corruption in high office,” according to Evelyn Gordon.
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In the process, however, independent Israeli attorneys general have committed a series of outrages, or what other democracies would consider outrages.

Attorneys general have, for example, objected to independent telecommunications and postal authorities, not on legal, but on economic grounds; conducted a vitriolic campaign against a new Knesset faction and its leader; and judged the propriety of political compromises essential to the formation of coalition governments not on the ground that they were illegal, but merely because, in the
opinion of the attorney general, the compromises were “inappropriate.” A man was denied the position of minister of public security because the attorney general said an indictment for violation of privacy disqualified the applicant from holding any position with access to sensitive personal information. The fact that, as a member of the special “security cabinet,” he had access to all classified documents, in any event, was ignored. He was acquitted, but too late to reverse his disqualification. As Evelyn Gordon justly said: “With the alacrity of a seasoned despot, [the attorney general] managed to take his own, wholly unlegislated notions of political propriety, translate them into a legal presumption of guilt without trial, and impose them on the composition of government without having to convince
anyone
he was right – handing a major setback to the innocent [man] and the tens of thousands of voters who had found voice in his party.”

The full extent of the abuse to which the powers of the attorney general lend themselves was disclosed when Prime Minister Netanyahu named Ya’akov Ne’eman as justice minister. A petitioner hostile to Ne’eman accused him of a number of crimes, most of which had already been investigated and found baseless. Though Ne’eman was initially investigated on a charge of suborning a witness, the prosecution found insufficient evidence to bring a case. But simultaneous with its announcement that there would be no indictment for subornation, the prosecution announced that suspicion remained and that Ne’eman would be indicted instead for perjury and obstruction of justice for his conduct during the
subornation investigation. The evidence for that charge was trivial mistakes about such things as dates in his affidavit, anomalies he discovered himself and corrected. Some months later Ne’eman was acquitted in court, but he had already had to resign because of the attorney general’s charges. Gordon remarks: “The mindboggling assertion that the role of the nation’s top law enforcement officials includes besmirching public officials whom they fail to indict – an assumption that met with virtually no public opposition – speaks volumes not only about the tendentiousness of [the law enforcement officials] but also about a poisonous admixture of the legal and moral responsibilities that the public has come to expect in the attorney-general.” Similarly, when the attorney general found there was not enough evidence to indict either Prime Minister Netanyahu or Justice Minister Hanegbi, he issued a report that there was nevertheless “real suspicion” that Netanyahu was, in fact, guilty.
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