Into the fray: Juristocracy in Israel, when legality loses legitimacy

Both the rule of law and democratic governance in Israel are being jeopardized by the very body purported to be its most committed guardian: the judiciary.

By MARTIN SHERMAN
Judges preside in court (Illustrative) (photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)
Judges preside in court (Illustrative)
(photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)
In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded... the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda... – Prof. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Harvard University Press, 2004.
The public is further losing its faith in... the legal system, with only 36 percent of the Jewish public expressing confidence in the courts...– “Public’s faith in Israel’s justice system continues to plummet,” Haaretz, August 15, 2013.
The Haifa District Court on Sunday blocked the state from setting a precedent that would help it deter flotillas by legalizing confiscating captured flotilla vessels and their cargo under international law never before used in Israel. – “Court blocks major state initiative to deter blockade-busting flotillas,” Jerusalem Post, September 7, 2014
A recent Post editorial (September 27) was right on the money when it asserted that “The High Court of Justice dealt Israeli democracy a grievous blow last week.” It was a sentiment echoed by the Post’s veteran columnist Michael Freund, who wrote: “High Court of Justice struck a decisive blow to Israel’s democracy last week, one that should send a shudder down the spine of anyone who cherishes basic principles such as the separation of powers....”
Fostering lawlessness?
The focus of this censure was the High Court decision to overturn legislation (for the second time) designed to help authorities cope with the massive influx of illegal infiltrators from African countries, notably Sudan and Eritrea, who have inundated mainly low-income neighborhoods, particularly in south Tel Aviv. These areas have become overcrowded, poverty-ridden, crime-infested enclaves, making the already un-pampered lives of the Israeli residents there virtually unbearable.
The annulled legislation – an amendment to the 1954 Prevention of Infiltration Law – gave the government the power to hold illegal infiltrators in the open detention facility in Holot, without trial, for a year – reduced from three years, stipulated in a previous amendment voided by the High Court in September 2013.
In their decision last week, the overwhelming majority of the panel of nine justices reduced the maximum detention time to 60 days and ordered the closure of the Holot facility.
The rationale for this ruling was given by Justice Uzi Vogelman, who contended that the court was justified in overturning a law enacted by the Knesset for the second time, because it “violates human rights in an essential, deep and fundamental way.”

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Despite the fact that detainees are not confined to the facility during the day, but must report for three daily roll calls and remain in the facility overnight, the High Court determined that this violated their freedom and dignity to an unacceptable degree – and hence, in effect, decreed their release... and the socioeconomic consequences this will precipitate.
The road to totalitarianism?
However much one might understand, even commend, the sentiments that motivated this decision, and the sensitivity it reflects for the rights, freedom and dignity of illegal aliens, it is not one that stands alone, without repercussions for the rights, freedom and dignity of the legal citizens of the state.
Quite the opposite. It is likely to have dramatic impact on the quality of the lives of thousands of Israeli citizens, who live in areas to which the Holot releasees are likely to return, and – in the words of the previously cited Post editorial – “exacerbating the already dreadful plight of [their] Israeli residents.”
But beyond the detrimental effect on the personal lives of these residents, the verdict is likely to have implications on a far wider national scale.
The size of populations that eye Israel as a desired destination is huge. The combined population of Sudan and Eritrea alone is, by some estimates, approaching 50 million.
Clearly, if only a small percentage found their way across the border, the country would be overwhelmed – and Israel would cease to be Israel.
It is in this context that Interior Minister Gideon Sa’ar’s condemnation of the ruling should be seen. Sa’ar declared he could “not accept the verdict of the High Court,” which, he warned, if implemented, would mean “we won’t have a Jewish, democratic state, because our borders will be overrun...with illegal infiltrators.”
Several years ago, one of Israel’s leading lawyers, the late Michel Fox, penned an article in Haaretz titled “Courting Disaster” (January 20, 2006) expressing deep concern at the consequences of judicial activism for democratic governance.
He warned that although “the consequences of judicial activism are usually congenial to liberals... [it] is an error to conflate judicial activism with social progress... There is one principle that unites all democracies; indeed there is nothing more basic: a country’s laws are made by its democratically elected legislature. You do not have to adhere to antediluvian social views... to find something profoundly troubling in legislation from the bench. That is the road to totalitarianism....”
Overriding authority with no responsibility
The Holot ruling and Fox’s caveat as to the implications for fundamental principles of democracy underscore another troubling aspect of the inappropriate (mis)appropriation of powers by the judiciary.
Although its ruling is likely to bring additional despair and distress to the Israeli residents in south Tel Aviv, it is neither accountable for the consequences, nor does it bear any responsibility for contending with their impact – or for devising an alternative policy to deal with the problem.
It is not difficult to identify with some of the genuinely heart-wrenching stories regarding the plight of many who made the arduous and hazardous journey from their inhospitable countries in Africa. It is easy to condemn the current policy of the elected government and to call for ways that, prima facie, appear more humane in handling the situation.
But, clearly, Israel cannot bear the burden of alleviating misery and penury in Africa, and its primary ethical duty and moral allegiance is to its own citizens. Given the limited resources at its disposal, any alternative policy will come at the expense of others – in terms of welfare budgets, personal safety and employment.
The unelected judiciary will not be answerable to anyone for outcomes that result from imposing on the elected, and answerable, branches of government measures that it was not elected to implement – or were elected not to implement.
This then is the grave danger involved in the usurpation of authority by the courts.
Symptom of a wider malaise
But the Holot ruling appears merely a symptom of a far wider – and enduring – malaise. As the Post editorial points out, over recent years, “The [unelected] High Court has vetoed more than 20 laws duly approved by the Knesset, steadily eroding its authority.”
These judicial interventions have not been confined to socioeconomic issues and/or questions of individual liberties, but impinge directly on matters of national security. As shown in the opening excerpt, the courts recently interceded to deal a “blow to one of the state’s broader strategies for discouraging foreigners from organizing flotillas to break its Gaza blockade.”
Other decisions have annulled measures designed to protect lives of IDF combatants and Israeli civilians, creating the impression that, not infrequently, the interests, and the lives, of non-Israelis are given preference over those of Israelis.
Former justice minister Daniel Friedmann was a fierce opponent of judicial activism.
A detailed review of his 631-page book The Purse and the Sword (Hebrew) that appeared last year in Haaretz provided the following description of his harshly critical perspective on the nation’s judiciary and its functioning: “The weakening of the political system allowed the judicial system to amass an enormous governance power. Those in the black robes took over the country, to the point where the executive branch lost its ability to govern.... The judge became the policy-setter, and along with the power amassed, there came, as always, inappropriate conduct. Conduct that, because its perpetrators are the ones who interpret the laws and pronounce the verdict, will never be considered criminally corrupt, but which smacks of immorality.”
‘Disproportionate’ & ‘unconstitutional’ mumbo-jumbo
In usurping the power and authority that should be the province of the elected executive and/or legislative branches, the unelected judiciary commonly invokes two mysterious, never-explicitly stipulated concepts of “disproportionality” and “unconstitutionality.”
Thus, while it is not uncommon for various security measures, instituted to curtail Palestinian terrorism, to be invalidated by the courts on the grounds that they are “disproportionately” harsh, the public is never informed of the fateful formula for computing exactly what is “proportionate.” We are left to puzzle over how to calculate the “proper” number of Israeli lives and limbs that should be put at risk before, in the minds of our learned justices, the inconvenience such measures may cause the Palestinians can be considered justifiably “proportionate.”
It would be intriguing to learn how the value of a Jewish life (or limb) is weighed against a “unit” of Palestinian inconvenience in judicial calculations of “proportionality” – or the lack thereof. However, there is little chance that we lesser mortals will be made privy to this in the near future.
As for government decisions/parliamentary legislation being voided as “unconstitutional,” matters are no less perturbing and perplexing, and one is left to wonder which clause of Israel’s nonexistent constitution is being invoked.
For as Fox pointed out in his previously cited article: “... arguments in favor of judicial activism in the United States... are not available to the Israel Supreme Court. The United States has a written constitution and it is the constitutional duty of its Supreme Court to interpret that constitution. Israel’s Supreme Court, on the other hand, has no constitutional authority to overrule legislation.”
Plummeting public trust
More often than not, these interventionist decisions appear to draw far more on the judges’ value system than on any explicit legal principles – and as Freund points out, “that is precisely the problem.” For Israel’s judges comprise a tiny unelected and self-perpetuating minority, whose value system, as reflected in Prof. Hirschl’s book Towards Juristocracy, is increasingly divergent from that of the population. As a result, “the public image as an impartial arbiter has been increasingly eroded, and its judges are increasingly viewed... as pushing forward their own political agenda…” Predictably and inevitably, this has led to a massive erosion in the faith the public has in the court system.
In a 2013-article headlined “Public’s faith in Israel’s justice system continues to plummet,” Haaretz reported that according to the latest Rule of Law Index, compiled by the University of Haifa’s Center for the Study of Crime, Law and Society, 36% of the Jewish public expressed confidence in the courts, down from 61% in 2000. The center’s director, Prof. Arye Rattner, who has been tracking the figures for well over a decade, said these figures represent “a negative image of the legal system that is gradually becoming fixed in the eyes of the Israeli public.”
Trust in the Supreme Court has dramatically declined since 2000, with only 56% of Jewish respondents expressing faith in it in 2013, compared to 80% in 2000.
When asked to account for this disturbing phenomenon, Rattner responded that, among other things, it was due to the Supreme Court’s “excessive involvement” when sitting as the High Court of Justice in controversial religious, social and defense issues.
Judicial activism, anyone?
When legality loses legitimacy
Israel, like any vibrant functioning democracy, needs a strong, independent judiciary – to interpret the law, not to make it.
By overstepping its authority, by its hubris and arrogant elitism, Israel’s judiciary is putting itself in peril. Without public trust, it cannot remain relevant for long – and the people will seek alternative methods for settling grievances and disputes. Once legality loses its legitimacy, the jungle – or the tyrant – will rule.
This is why the rule of law and democratic governance are both being jeopardized by the very body that should be their most committed guardian.
This is why fundamental change is imperative.
Martin Sherman (www.martinsherman.net) is the founder and executive director of the Israel Institute for Strategic Studies (www.strategic- israel.org).