Coercing Virtue (16 page)
Authors: Robert H. Bork
Perhaps the most significant immediate outcome is that, in the face of potential Supreme Court review, the Knesset is loath to pass laws that, in its judgment, a Barak-led Court would likely overturn. In effect, Barak’s “constitutional revolution” has effected a far-reaching judicial preemption, the consequences of which differ little from those of actual judicial review. To understand what might be in store for Israel once the Supreme Court actually engages in judicial review, Neuer finds it instructive to look at the experience of Canada, since it underwent a similar constitutional transformation in 1982 with the adoption of the
Charter of Rights and Freedoms. The
comparison is especially relevant because the
Charter
served Israel as a model for some of the key provisions in the
Basic Laws. This
replication accounts for the strong Israeli interest in Canadian judicial and academic interpretations of the
Charter
. Several Israeli judges, Barak first among them, increasingly refer to Canadian constitutional jurisprudence.
Given its addiction to universal values, moreover, the decisions emerging from the Israel Supreme Court will likely continue to neutralize the Jewish aspect of the
Basic Law
, while causing ever-greater alienation of those “unenlightened” segments of the population who hold such values dear. The more such cases are adjudicated by a Barak-inspired Court, the less Jewish Israel is likely to become and the harder it will be to distinguish it from secular democracies such as Canada and the United States.
The Israeli public participated not at all in the alleged framing of a constitution. That public, however, has been surprisingly quiescent in the face of what could easily be described as a judicial
coup d’état. The
reasons for that passivity are probably several: the public’s failure fully to comprehend what has happened; the influence of elite groups favoring judicial policy-making; a feeling that the Knesset is so politically riven as to be ineffective; and the cult of the robe: the Court’s reputation as a nonpolitical body deciding fundamental matters on principle rather than from expediency or personal predilection.
The “enlightened segment” of the Israeli population does not take kindly to criticism of the role that the Barak-led Court has assigned itself. When editorials highly critical of the Court and its president appeared, the result was a torrent of denunciations – of the
newspapers. Complaints were filed with the police, charging the papers and their editors with sedition and defamation. There were calls for closure of these newspapers, while prominent politicians from almost every party vied to produce the most vicious castigation of the “crime.” When the chairman of the Israeli Bar Association censured the Court for intruding in matters that were properly for the Knesset, there were further denunciations, complaints to the police, and demands that the man be removed from his position both at the association and on the committee that appoints judges. The bar’s ethics committee recommended that he face disciplinary charges.
After the road-closing decision, the Haredi newspapers waged a campaign against Barak, pointing out that the rule of the people had ended and that the Court was dictating on matters the Knesset should govern. Instead of finding a sympathetic audience, the entire political establishment went into outrage. Once more there were demands for indictments and drastic legal action against anybody who criticized the Court severely. That reaction came from politicians, the mainstream press, and the legal establishment.
The Haredi papers referred to Barak as the driving force behind the sophisticated battle waged against the Jewish viewpoint in Israel. He should be portrayed, the paper said, as a danger to the character of Israeli democracy and as a threat to citizens’ power to decide for themselves how their country should be run. Once more, a protest against any criticism of the Court erupted and a
former Supreme Court Justice said that he was scandalized that anybody had “dared to speak harshly against the Supreme Court.” There were calls for a police investigation of the papers for engaging in sedition. One chairman of a Knesset committee demanded that the government shut down the newspapers.
Many of these attacks came from the left, but the right also assailed critics of the Court. The legal community, including the deans of the country’s four major law schools, issued a statement that the editorials were intended to intimidate judges. The Association of Municipal Attorneys asked that action be taken by the attorney general against the papers. It was even said that the attacks would undermine the faith of the public in the judiciary as a whole and in the Supreme Court in particular. An independent judiciary, it was argued, was fundamental to the existence of the rule of law and the preservation of a democratic regime in Israel. That was particularly odd because there is no rule of law when judges’ personal sentiments rule and when the Court, far from preserving the democratic regime, is undercutting it. The Haredi papers kept up the attacks, but there were virtually no voices defending what they had written or the right of the papers to publish criticism. The attorney general declined to act on any of the criminal complaints because, to do so, would infringe on the freedom of speech and cause more harm than benefit, but he still made it clear that he did not oppose social pressure to suppress the writers’ views. He said that one of the disadvantages of an indictment was that a publicized trial
would give the editorialists another platform from which to express their views. Even Prime Minister Netanyahu decried what he called unrestrained attacks on the Court and its Justices. The American Bar Association’s attacks on critics of activist American courts pales by comparison with the fury unleashed in Israel.
Israel has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere. The sad irony is that the Supreme Court, operating with a
Basic Law
that specifies the values to be applied as those of Israel as both a Jewish and democratic state, is gradually producing an Israel that is neither Jewish nor democratic.
1
The Israeli Court sits as either the Supreme Court or as the High Court of Justice. The latter hears petitions for the redress of grievances brought against the government. It is a court of first instance, or original jurisdiction: cases are brought directly to it rather than coming up on appeal from lower courts. The distinction between Supreme Court and High Court is irrelevant to much of the discussion here and, for convenience, the text will often refer simply to the Supreme Court
.
2
The
Basic Law
follows the pattern of the
Canadian Charter of Rights and Freedoms
, stating rights in unqualified language and then, since government would be impossible if all rights were absolute, stating the conditions on which the rights may be limited
.
3
In the United States, a similar sentiment led to the creation of the Office of the Independent Counsel, charged with investigating and, if warranted, prosecuting high executive branch officials. Like Israel’s attorney general, the independent counsel was accountable to no elected official. The innovation proved unsatisfactory to both political parties, particularly when the executive of their own party was subjected to the independent counsel’s ministrations. The office has been allowed to lapse unmourned
.
4
The U.S. Office of the Independent Counsel was similarly an invitation to political abuse; some independent counsel resisted the temptation; others embraced it. One counsel, for example, filed a written report stating that, though he declined to indict, he believed a nominee to the post of attorney general had violated the law. Another probably influenced the choice of a president when, just days before the election, he filed an indictment of an official which noted, gratuitously, that he thought George Bush, the incumbent president, knew more than he admitted about supposed illegalities
.
5
The United States has addressed a similar difficulty with respect to electronic surveillance in national security cases by creating a special court, whose proceedings are secret, to grant or deny applications for warrants to conduct such surveillance. Though this is not, and for obvious reasons, cannot be an adversarial proceeding, it does provide supervision by an independent judiciary that can take into account in advance the particular facts of each case
.
THEINTERNATIONALIZATION
OF LAW
In less than a decade, an unprecedented concept has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subject to systematic debate, partly because of the intimidating passion of its advocates. … The danger is that it is being pushed to extremes which risk substituting the tyranny of judges for that of governments; historically the dictatorship of the virtuous has often led to inquisitions and even witch hunts
.
Henry Kissinger
T
he internationalization of law is happening with phenomenal speed and comprehensiveness. With that development comes law’s seemingly inevitable accompaniment: judicial activism. For some, usually those on the left, internationalism appears to be almost unalloyed good. The use of armed force between nations, it is said, must be tamed by being brought within a rule of law. The violation of human rights by nations against their own citizens must be diminished or ended by holding the perpetrators responsible in international tribunals or, in some cases, in other national court systems that are willing to take jurisdiction. International codes of individual freedom, similar in intention to the United States’
Bill of Rights
, are enacted to protect persons from majoritarian rule.
To many people these goals seem entirely laudable, and so they would be if the realities lived up to the abstractions. But that outcome is impossible. Instead, internationalization will magnify many times over the defects already identified in the constitutional law of the United States, Canada, and Israel: the loss of democratic government, the incursion of politics into law, and the coerced movement of the culture to the left. The New Class is an international class and it displays its socialist impulse everywhere while waging an international culture war. The internationalization of law is one way of transforming parallel struggles in the various nations of the West into a single struggle waged across national boundaries. The explanation for this internationalization of law may contain an even more sinister element. The New Class in the United States has failed to press its full liberal agenda
in Congress, the state legislatures, and, to some extent, in federal and state courts. By creating international law, a project at which it is particularly adept, the New Class hopes not only to outflank American legislatures and courts but to have liberal views adopted at a different level and then imposed on the United States. History shows that the citizens of individual nations have been unable and unwilling to resist the depredations of their national courts. There is no reason to expect they will be able to resist courts that are sitting in foreign countries, composed of judges of several nationalities, and operating under vague humanistic standards to which their own nations have, however ambiguously, pledged allegiance.
It will be possible to discuss only a few examples of judicial activism in the international arena. Conventions and treaties exist on most subjects: human rights; civil and political rights; economic, social, and cultural rights; genocide; racial discrimination; and discrimination against women. In addition to the committees and councils that supervise aspects of these prohibitions and guarantees, several courts have jurisdiction in different areas: the International Court of Justice (World Court); the European Court of Human Rights; the European Court of Justice; and the not-yet-operative International Criminal Court. Given the limitations of a single chapter, the discussion here will center on human rights and the use of armed force between nations.
The internationalization of law and the corresponding internationalization of judicial activism take various forms. The first is the recent tendency of national courts,
when applying their own constitutions, to cite the decisions of foreign courts in applying their own constitutions. An allied form is international conferences of judges, professors, and social activists to discuss the means of creating new rights in each nation. One primary example was a conference held in London in 1999 to consider ways of making homosexual conduct a constitutional right in various nations.
Some national courts have agreed to try cases involving acts done abroad by foreign nationals against foreign nationals. Thus, some United States courts have accepted the jurisdiction to hear tort claims for actions that have no connection with the United States or its citizens. Other nations’ courts have claimed the authority to apply criminal sanctions to conduct having no relation to their own countries. The most prominent international tribunal in this area is the European Court of Human Rights sitting in Strasbourg.
