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Israel’s Supreme Court Faces Turning Point if Two Justices Retire

October 18, 2005
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Israel’s Supreme Court, which traditionally tackles the most pressing issues in Israeli society, may soon face another serious challenge if the Israel Defense Forces asks Israel’s highest court to mind its own business. Defense Minister Shaul Mofaz wants to appear before the court to ask it to reconsider a recent ruling banning a commonly used practice for confronting Palestinian terrorists.

When Israeli troops are closing in on wanted Palestinians, they often send Palestinian civilians to the terrorists with a message to turn themselves in.

The court ruled recently that the so-called “neighbor practice” conflicts with international law and shouldn’t be used. But Mofaz wants the court to leave use of the “neighbor practice” to senior officers’ discretion.

Regardless of its outcome, the case reflects growing uneasiness among large sectors of the Israeli public with the powers the high court has acquired. The main argument is that the judicial activism promoted by Chief Justice Aharon Barak often transcends the basic separation of powers in a democracy.

Judicial activism has been the target of criticism in Israel for quite some time. The Knesset House Committee, for example, recently ignored a court ruling waiving the immunity of a Knesset member.

Likud Party legislator Michael Eitan, chairman of the Knesset Law Committee, frequently says the Supreme Court has amassed too much power.

“The Supreme Court adopts an approach of ‘judges without borders,’ ” Eitan charged.

Religious and nationalist circles often accuse the justices of imposing their allegedly liberal and left-wing views under cover of legal arguments

The problem is magnified since the lower courts have been accused of letting standards lag. Allegations of foot-dragging, double standards in punishment — mostly between Arabs and Jews — and leniency toward politicians and white-collar criminals have become routine.

Barak’s judicial philosophy is exemplified by his now famous statement that “everything is tryable,” or that the court potentially has a role in almost any issue. With growing crime, corruption and deficiencies in the civil service, more and more Israeli citizens are turning to the courts for help.

The courts can’t cope with the burden. The Supreme Court receives some 1,000 new files every month, and it took three years for the court to rule on the “neighbor practice.”

A recent Israel Democracy Institute survey on the level of public trust in the Supreme Court shows a drop from 79 percent to 72 percent.

However, no measures have been taken to limit the court’s powers. The main reason: immense respect for the legal authority of Barak and his deputy, Mishael Cheshin, both of whom have outstanding international reputations.

Things may change, though, when both Barak and Cheshin turn 70 next year and are expected to retire.

The two judges are quite different in nature. Barak is considered a man of compromises, while Cheshin is seen as more rigid.

Unlike Barak, Cheshin believes there are issues in society that should stay out of the courtroom. At a symposium following the publication of Barak’s new book, “A Judge in a Democratic Society,” Cheshin said the legal system indeed can intervene in almost any public issue, but “it’s undesirable that it should take over all walks of life. Law is the minimum needed for the existence of a society, not the maximum.”

Barak responded that he had never argued that “everything is tryable in the judicial sense,” but rather that “every corner of life” has a legal aspect.

In the past, Barak was not shy about implementing his legal philosophy. One of his most famous decisions, when he was attorney general in 1977, was to press charges against Leah Rabin, the wife of Prime Minister Yitzhak Rabin, on foreign currency violations, a decision that led to Rabin’s resignation and eventually to the Labor Party’s fall from power.

Barak was appointed to the Supreme Court in 1978, and has served as its president for the past 10 years. He has advanced enforcement of basic laws on human rights, enacted in 1992, that grant courts the power to overturn “unconstitutional” laws, although Israel still has no constitution.

Regardless of the difference in judicial temper between Barak and Cheshin, both will be missed on Israel’s highest court, leaving behind a group of justices that lacks the stature and judicial leadership of Barak and Cheshin.

The catch is that to continue Barak’s legacy as one of the molders of Israeli democracy, the court will need another justice like him, and there are few in sight.

In the near future, the Judicial Appointment Committee will appoint three new judges to the Supreme Court. Traditionally, most new justices come from lower courts.

This time around, Justice Minister Tzipi Livni, who chairs the appointment committee, endorses Hebrew University’s Ruth Gavison, a human rights activists and one of the most brilliant jurists in the country, but someone with no judicial record.

Others suggest Mordechai Kremnitzer, also of Hebrew University, who has served as a prosecutor and judge in the IDF but has never served in the civilian judicial system.

The main opponent to Gavison’s candidacy in the appointment committee is Barak himself, apparently because of Gavison’s vocal opposition to Barak’s judicial activism.

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