Israel's Democratic Challenge

Caroline Glick
July 3, 2009

It works out that retired Supreme Court president Aharon Barak - the man who shaped Israel's judiciary in his own image - doesn't care much for Jews.

In a speech last Thursday sponsored by the post-Zionist New Israel Fund, Barak said, "If you ask a Jew whether he supports equality with the Arabs, he will say: 'Certainly.' And if you ask if he supports kicking all the Arabs out of here, he will say: 'Certainly.' He sees no contradiction between the two."

After denouncing Jews as stupid racists, Barak went on to explain that in his years on the bench, as his anti-Jewish views developed, he gradually abandoned his legal duty to ground his judgments in Israeli law. Instead, he engaged in a free-wheeling dispensation of justice in accordance with his radical political views.

As he put it, "I remember the problems that were brought before me in my 20 years as a judge, when my line of thought was always administrative: How much power do the administrative bodies in the territories have? With time, as my knowledge of international law increased, my outlook began to change. Instead of talking about what is allowed and what is forbidden for Israeli forces, I thought about the rights of the people there: what rights they deserve."

So by his own admission, during his years on the court, Barak determined what "rights" the Palestinians "deserve," unfettered by annoying inconveniences like the pretense of law or the normal legal boundaries that inform the decisions of a state governed by the rule of law. It was due to his open contempt for Israeli democracy that under his judicial leadership the country was effectively transformed from a parliamentary democracy governed by law into a judicial tyranny governed by the preferences and prejudices of a fraternity of lawyers that Barak empowered to adjudicate permissible behavior on the basis of their shared radical political preferences.

Barak's bigoted castigation of Jews in his speech raised a storm of public protest. Unfortunately, the far greater danger exposed by his elucidation of his extra-legal judicial philosophy was largely overlooked. This is troubling because on a national level, it is much more important for Israel to roll back Barak's anti-democratic judicial revolution than to condemn his personal bigotry.

OUR ELECTED officials took an important first step in this direction last month by electing MK Uri Ariel to serve on the Judicial Selections Committee responsible for appointing judges. Ariel's election by his Knesset colleagues marked the first time in a generation that the radical judicial activists loyal to Barak comprise the minority of committee members. That is, Ariel's election opened the door to the appointment of non-radical judges who believe that court judgments should be based on laws, not on political and social agendas.

Now, in the aftermath of Barak's speech, the Netanyahu government and the Knesset should present Ariel's election as a first step in an overall policy of reforming the judiciary and the State Prosecution. Specifically, the Knesset should pass legislation reinstating checks and balances on the Supreme Court that Barak removed through judicial fiat as court president. These checks and balances must bar the court from cancelling legally promulgated laws, and block it from using its role as the High Court of Justice to dictate government policy.

Beyond that, the government and the Knesset should pass legislation ending the current untenable situation in which the government and the Knesset are denied legal counsel because they have become the servants rather than the masters of their legal advisers. Over the past decade, coerced by the court and its servile media, the government and the Knesset have been barred from appointing the attorney-general and the Knesset's legal adviser. Instead these officials are appointed by civil service commissions controlled by retired Supreme Court justices and are consequently informally subordinate to the Supreme Court, rather than to the elected officials they are supposed to be serving. This must end.

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