Supreme Court Chief Justice Dorit Beinisch has retired. We all harbor hopes for the beginning of a better period for Israel’s Supreme Court. After all, we have been promoted from Bet to Gimel [a play on words that can mean being promoted from second to third grade in school, ed.] – from Barak-Beinisch to Grunis, that is, and we can begin recovering from the judicial imperialism of Aharon Barak, somewhat less successfully maintained by his protégée Beinisch.
Continuing in this optimistic vein, there are those who feel that – as did our Prime Minister recently – that we can part from Beinisch in good fellowship, praise her for watching over the Supreme Court “wonderfully” and for not once “changing your mind about what you feel needs to be done”, as he did.
Perhaps our Prime Minister’s last sentence contains a certain modicum of disappointment that Beinisch did not have the wisdom to change the court’s direction, because her purposefully antagonistic methods only added to the intra-Israel fires.
Beinisch responded by saying that she realizes that Netanyahu, subject to political pressure from all sides, did not have an easy time living with her court’s decisions. By stating that, she in effect repeated the oft-belied mantra that the courts can always be relied on to be “apolitical and professional”, in contrast to governments which are by their very nature political.
Thus, in the farewell platitudes playoff, the final result was 1-0, with Beinisch emerging as the winner.
Nevertheless, even those who are not willing to flatter the outgoing Chief Justice, neither out of genuine generosity nor for political motives, may now feel that the prevailing optimism allows them to sit back and relax, stop criticizing the courts and end the efforts to correct that which needs correction.
It is highly recommended that they avoid this pitfall, even during the coming Grunis era.
This past week’s Tal Law bombshell, with the Supreme Court suddenly invalidating the law just as a Knesset committee is working on a new version which it hopes can be a way to bring about change wisely, serves as proof that there is a long way to go.
The result of the courts’ decision on a controversial social issue with which it could have refused to deal, was that hareidi leaders reacted in extreme fashion and some bitterly expressed their constituents’ feeling that the courts have never found in favor of hareidi interests. No matter what one’s opinion is on yeshiva students’ blanket IDF exemptions, and even if one does not identify with Israel’s spiritual need for citizens who engage in fulltime Torah study, this long-standing situation cannot be changed radically overnight if the country is not to lose much more than it would if hareidim continue to be exempt. Grunis, to his credit, voted against the majority opinion, and seemed to understand that.
So - first of all, a consistent approach is in order when it comes to the court.
We have warned ceaselessly, throughout the Barak-Beinisch period of rule, that the current Israeli method of choosing judges, one that has no parallel the world over, is a flawed procedure that goes against the principle of separation of powers. That would be true even if the procedure produced judges whose views mirror the [rightist] Legal Forum for Eretz Yisrael (okay, let’s not get carried away there, it won’t happen). The method is inherently untenable.
Second, we must return to Israeli legal tradition, which has the judiciary interfere only when the executive branch acts criminally or irresponsibly, and abandon Barak’s “test of reasonableness“ that allows the judge use his subjective judgment instead of the judgment of professionals – even on security issues, such as the positioning of the security fence.
Aharon “Barak’s famous “test of reasonableness“ created obfuscated what is allowed and what is forbidden, and made the entire system unclear.
Barak’s Basic Law of Human Dignity and Liberty was broad – or vague - enough to initiate a legal revolution, empowering the court to invalidate Knesset legislation which it felt did not conform to this Basic Law. Added to that was Barak’s principle that “everything is justiciable”, which made every issue the province of the courts.
The rule that plaintiffs needed “standing “ was abolished during Barak’s era, allowing, for example, every leftist anti-Zionist organization to sue settlers about land ownership that it had no personal connection to.
Let us hope that we are on the way back to the days when the state of Israel functions with the Knesset as its basic legislative body, so that its laws can never be described as “circumventing” the courts who saw themselves as alternative legislators.
The right’s remaining alert even afer the “changing of the guard” will help the new Chief Justice avoid the background leftist noises claiming that he is “ours”, that is, supportive of the right’s principles. We can take our cue from mainstream media, who claim their mandate is to serve as the “guard dog of democracy”, and therefore criticize each and every government, without favoritism. The mainstream media did criticize both Olmert and Netanyahu – but always from the point of view of the left. We can learn from their example.
(translated by Rochel Sylvetsky, who also contributed to the English version)