Coercing Virtue (14 page)

The powers the Court has lodged in the attorney general can hardly be overestimated.
The Movement for Quality Government in Israel
v.
Prime Minister Ariel Sharon
(2001) arose from Attorney General Elyakim Rubinstein’s ruling that Sharon could not use his son, Omri, as an emissary to Yasser Arafat. Although Omri was not to be paid, Rubinstein said it was nepotistic, not in accord with the norms of good government, and therefore impermissible. He qualified that by saying Omri could be used if it were really a “life-or-death” situation. Ignoring the ruling, Sharon continued to use Omri, saying that, in Israel’s situation, all such missions are potentially life or death. The Movement for Quality Government went to the Court, arguing that Sharon was breaking the law by violating Rubinstein’s directive. After a few hearings, Sharon surrendered and told the Court that though he thought Rubenstein wrong in principle, he would not use Omri without Rubenstein’s permission. Rubinstein replied that if he received such a request, he would consult with various security and defense officials before giving or denying consent. The unelected attorney general, rather than the elected prime minister, now decides when a life-or-death situation exists and when it does not.

The prime minister was further hamstrung when the Court, in denying a new government the power to replace the civil service commissioner, announced a rationale that, at the very least, strongly suggests that a new government may not replace the attorney general, and hence that no attorney general may be dismissed at any time. Even the government’s authority to choose an attorney general when the post becomes vacant may be put in question. Bills were drawn up by both the Netanyahu and the Barak governments which stated that
the government must submit its proposed candidates for attorney general to a five-member committee that could propose its own candidates. The committee’s choice would be referred to the Cabinet, which could approve or reject the nominee. The committee, headed by a retired Supreme Court Justice, would be composed, additionally, of a former justice minister or attorney general appointed by the Cabinet, a member of the Knesset chosen by the Knesset Constitution Committee, an attorney chosen by the Bar Association, and an academic chosen by the deans of Israel’s law schools. The committee could reject any candidate it considered “improper,” a term that meant having personal or political ties to someone in the government. That process severely undercuts the government’s ability to choose someone known to be sympathetic to its agenda. Owing to changes in the Knesset, these bills were never enacted. They reflect, however, the widespread opinion, perhaps influenced by the Supreme Court’s decisions, that the attorney general should play a role independent of, and even contradictory to, the elected government’s policies.

Even without these proposals, as Gordon makes plain, “the reality is grim enough. The government is now saddled with a senior official who has the legal authority to veto virtually any government action or policy, against whom it has no means of appeal, and of whom it can rid itself only with the utmost difficulty, if at all; and with an outside committee which has the power to veto any candidate who would be too likely to use his power in line with the government’s wishes.” It is extraordinary that
the Israeli public should accept the idea of an attorney general capable of hamstringing the executive branch that the public votes into office. There would seem to be less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them. “Replacing the normal methods of democratic oversight with the oversight of a single, all-powerful unelected official,” Gordon concludes, “is not entirely different from replacing democracy with autocracy.” If the Court is added to that summation, democracy is actually slowly being replaced by oligarchy.

The Supreme Court has adopted a standard of reasonableness for judging government decisions and actions. As a result, the range of decisions that could potentially be overturned became almost identical with the totality of government action. The Court has dramatically increased its involvement in the day-to-day governance of the country and, in recent years, has ruled on governmental decisions and actions that, in the past, were denied review. The issue of compulsory army service provides an example. After the defense minister exempted full-time yeshiva students from compulsory army service, there were a series of challenges to the law. In 1981 the Court ruled that the issue was not justiciable. In 1986 it ruled that it was justiciable, but that the exemption was a reasonable exercise of the minister’s authority. In 1998, however, in
Amnon Rubenstein
v.
Minister of Defense
, the Court decided that the exemption was unreasonable because the number of yeshiva students had increased. This ruling substituted
the Court’s discretion for the discretion the Knesset had lodged in the defense minister. The Court was now deciding how many exemptions defense policy could afford. It deferred implementation for one year to give the Knesset time to enact legislation, and then granted additional extensions. The Knesset ultimately legislated a further two-year continuation of the exemptions while it considers the issue. In response to a petition that this extension be held unconstitutional, the Court created an eleven-Justice panel to consider the issue, but no ruling has yet been handed down.

The Court’s self-arrogated authority to overturn government decisions solely on the Court’s judgment that the action in question is “unreasonable” was again displayed when the Transport Ministry’s traffic supervisor, who is legally authorized to close major roads, decided to close a street that the Haredi (ultra-Orthodox Jews) wanted closed on the Sabbath. The Court recommended that the government appoint a commission to study the issue, which the government did. But the commission agreed with the closing. The Court then resumed hearings and prohibited the closure. The Justices cited no law or right that had been violated, but simply thought it unreasonable and, therefore, illegal.

The reasonability standard disregards the separation of powers. In judging reasonableness, the Court necessarily replaces the legislative process. It claims that it uses the power to overturn unreasonable government decisions only where the decisions are so egregious that “it is inconceivable that any reasonable authority would be
likely to make [them]” – which must mean that a majority of otherwise sensible people are behaving so irrationally as to approach temporary insanity. But the cases in which the power has been used show that the standard of unreasonableness is much lower than the Court suggests and amounts to no more than second-guessing. The Israeli Supreme Court’s standard of “reasonableness” is equivalent to the United States Supreme Court’s “substantive due process” and the Canadian Supreme Court’s “fundamental justice.” All these terms are formulations of the judiciary’s never-ending quest for a form of words that will justify judicial power that is essentially lawless. The three formulas differ in only one respect: the American and Canadian Courts perverted the plain meaning of procedural guarantees in order to seize an authority over the substance of legislation, while the Israeli Court simply imported an innocuous-sounding standard to achieve the same radical assumption of illegitimate power.

The Court has vetoed the Cabinet’s choice for director general of a government ministry, overturned the Knesset decision to lift the parliamentary immunity of a member of the Knesset so he could stand trial, and denied the government’s right to continue a fifty-year-old ban on the import of nonkosher meat. It has overturned the attorney general’s decision not to try certain public figures, prevented the government from dismissing its civil service commissioner, and even overturned the Israel Prize Committee’s choice of a prize recipient. In
Raphael Pinhasi
v.
Knesset of Israel
(1993) the Court overturned the Knesset’s decision to lift Pinhasi’s
parliamentary immunity so he would stand trial for violations of tax and party-funding laws on the ground that the Knesset was playing a “quasi-judicial” role and had not met standards of judicial fairness. Members had not, for example, been given copies of the indictment or had enough time to read the protocols of the House Committee’s lengthy analysis of the issue. The quasi-judicial rationale was preposterous because the Knesset did not try or convict Pinhasi of any offense, but merely gave permission for him to stand trial, where he would have been entitled to full procedural regularity.

There appear to be few limits to the Supreme Court’s willingness to interfere in political matters. In
Yosef Zberzhevsky
v.
Prime Minister
(1990) the Court overturned a coalition agreement between the Likud and a small faction in which the Likud agreed to cancel a debt that the smaller party owed it. The Court said that this agreement was equivalent to buying power and therefore illegal. In
Ze’ev Welner
v.
Chairman of the Labor Party
(1994) Labor and Shas agreed that, “If the status quo in religious affairs is violated [by a decision of the Supreme Court], the two sides promise to correct the violation by means of appropriate legislation.” The attorney general declared the agreement “inappropriate, and not to be acted upon.” During initial hearings, the Justices made it clear they were likely to rule the same way. Labor and Shas then altered the wording: “In any case where the two sides think the status quo has been violated, the two sides will investigate, in a serious and reasonable manner – considering each case on its own merits – how it is
possible to restore the status quo, and will act accordingly … If it becomes clear that the only way to restore the status quo is through legislation, the two sides will use their discretion as to the appropriate content of such legislation.” Labor promised Shas that this wording meant the same thing as the previous form of the agreement. It must have taken some acrobatic lawyering to produce the identical promise disguised in verbose prose. Even so, the agreement slipped by the Court by only a 3 to 2 vote.

In assessing the Supreme Court’s performance in the area of national security, it is essential to remember the nation’s extremely precarious position in the Middle East. All the nations surrounding Israel ardently desire the country’s destruction and, indeed, the annihilation of the Jews. Arab terrorist organizations regularly commit bloody outrages against the civilian population. A major portion of Israeli citizens are Arabs, some of whom are of dubious loyalty. Considering the dangers continually confronting Israel, its responses to terrorist attacks and the threat of invasion have been quite moderate, sometimes arguably too moderate. Be that as it may, one would suppose that the nation’s courts would stay out of life-and-death decisions about national security and defense. Yet the opposite has been the case.

The Court suggested in
Committee Against Torture
v.
Government of Israel
(2000) that it may take over the supervision of the methods of interrogation employed by
Israel’s General Security Service against suspected terrorists. The GSS had been using both psychological and physical techniques, such as shaking, sleep deprivation, and placing those waiting for interrogation in the “Shabach” position (the prisoner seated on a low chair tilted forward, hands tied uncomfortably behind his back, head covered by an opaque sack, all while powerfully loud music was played in the room). Although very unpleasant and potentially damaging, these techniques did not come close in severity to those used by many other security forces around the world. The GSS’s decision to use physical force in each case was based on internal regulations that required permission from various ranks in the GSS hierarchy and that were themselves approved by a special Ministerial Committee. President Barak’s opinion for the Court acknowledged Isreal’s extremely perilous situation, which “has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding.” The difficulty was that the
Basic Law: Human Dignity and Liberty
contains clauses guaranteeing freedom from violation of a person’s body or dignity and from restrictions of liberty by imprisonment. The rights could be violated only “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” But the Knesset had never passed legislation authorizing GSS interrogation techniques or even authorizing the existence of the GSS. The Court’s decision disapproving of the techniques was, therefore, correct, but the rhetoric was so disapproving that any
legislation authorizing the GSS’s techniques would very probably be very unlikely to pass the Court’s interpretation of values, proper purpose, and least-restrictive means. An additional problem is that the decision to use force and the degree necessary will always depend on the facts of a particular case. It is difficult to see how the Knesset can do more than articulate general principles, and even then the Court may well disapprove of their application.
⁵

Terrorist organizations, often in cooperation with Arab governments, seize and hold Israeli soldiers hostage. Israel’s Defense Force retaliates in a variety of ways, among them by holding terrorists in order to assist negotiations leading to an exchange of prisoners. In
John Doe
v.
Minister of Defense
(2000) the Supreme Court of Israel ruled that the IDF had to release eight Lebanese prisoners, members of the Hizballah, it had held past the expiration of their prison terms as leverage in securing the release of Israeli prisoners of war. In a 6 to 3 vote, President Barak, writing for the majority, ordered the Lebanese prisoners set free. No law prevented the IDF from using this “bargaining chip” tactic, but Barak wrote that holding the guerrillas violated their dignity and freedom. An important means of preserving national security was taken away by the Court.

These cases do not stand alone.
Kedan
v.
Israel Lands Administration
(2000), known as the
Katzir
decision after the community involved, held that the government could not refuse Arab citizens of Israel the right to establish residence in Katzir, which was situated along with seven other communities to create a buffer zone against areas with large Arab populations. The admission of Arabs, citizens of Israel or not, to such communities would endanger and perhaps defeat the defensive purpose of the bufferzone policy. Barak wrote the opinion holding that use of the criteria of nationality or religion was discrimination and, therefore, a violation of the principle of equality. The disingenuity of the reasoning need not detain us. The important point is that, once again, universalistic principles were deployed to harm Israel’s security, without adequately weighing Israel’s particular circumstance and needs.