The Rule of Law or the Rule of lawyers.

By Malcolm Dash, IISS      7.3.16

To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.  – Thomas Jefferson, September 20, 1810

Israel, like any vibrant functioning democracy, needs a strong, independent judiciary – to interpret the law, not to make it.

“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 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.

By exceeding its authority, by its arrogance and self-important elitism, Israel’s judiciary is placing itself in jeopardy. With the mounting loss of public trust, the judicial system cannot for long remain credible and the public will resort to settling its disputes by alternative methods. Without the legitimacy of the legal system, non-democratic authoritarian and tyrannical regimes inevitably take root.

In Israel the rule of law has been superseded by the “rule of lawyers” who may well be perceived as the enemies of the law. Judges are appointed, all drawn from the ranks of lawyers, who can remain in their positions up and until the mandatory retirement age of 70. When appointed to the bench at a relatively early age they have many years in which to shape the court and influence future justices. Judges in the mold of ex Supreme Court president Aharon Barak definitely leave an activist stamp on the legal establishment as indeed Barak did, although he alleged he did not have an agenda, “None of us may turn our personal beliefs into the law of the land.”

It became clear however that most judges who served with him and subsequently after him, adopted his activist prescriptions and it is highly unlikely that they would rule according to beliefs other than their own. Judicial activism is another and efficient way to promote a re-engineering of the social order of the day. It’s no surprise then, that NGO’s, Human Rights crusaders and the like, turn to the courts for their stamp of approval to further their social activism in order to affect government policy, rather than through the legislative process in the Knesset.

Social, familial and community values of Jewish/Israeli culture are routinely being challenged at the Supreme Court as are indeed political and security matters. The Justices have vested themselves with the agency to carry out broad cultural changes, on the pronouncements of lawyers (unelected), who have been upgraded to serve as Supreme Court justices.

Nor did the original architects of Israel’s Supreme Court intend for the Justices to exercise this type of exaggerated power. It was not conjectured that they would execute laws, legislate, or create social policy—its function was to make judgments on laws legislated by the democratically elected parliament. Supreme Court justices are not intrinsically more moral or less imperfect than others, they too are simply individuals, like the rest of the citizenry.

Yet, they are attempting to make cultural and policy choices that have profound importance for all Israelis. Judicial activism’s detrimental effect on the democratic process must be curtailed, whether it reflects Conservative or Progressive Liberal agendas it is every bit as deplorable. The elected Legislature’s majority decisions may or may not accord with the Supreme Court’s, worldview, its standards and moral codes. But judicial interdicts of those majority outcomes is not at all democratic and in fact are clearly undemocratic.

Justice Robert Bork was an eminent American legal authority, and in 1987 he said, ‘Supreme Court President Barak’s judicial vetoes of majority decisions’ “may or may not be proper in a given case, but one thing they are not, is a form of democracy, indeed they are a check on democracy”. Barak’s assertion that both the people’s decisions and the frustration of those decisions are “democracy” eliminates the distinction between rule by elected representatives and rule by judges. As a result this leads to ever increasing judicial power and the unelected judges assume the role of a supralegislative body.

The arrogated powers of the Judges to override both legislative and executive decisions is no less than a “constitutional revolution”. Ironically Barak stated “the court is authorized to interpret the constitution, but it is not authorized to create a constitution”. An unanswered question is, if the legal system is supposed to reflect society’s’ norms i.e. current cultural conventions, moral values and ethical principles that people cherish, why do the judges regularly issue legal edicts and laws that do not in many instances accord with the wishes of the people?.

It would seem rather, that the Judges defer to the opinions dominant within the “self-appointed” intellectual elites. These elites, comprised of the legal establishment, main stream media and voices in academia who allegedly personify the wisdom to know what justice is, what truth is, what morality is and what standards and norms should be adopted. The courts have adroitly expanded their legal authority by legalizing political matters. In stark contradiction to his previously cited position that: “the court … is not authorized to create a constitution” Barak declared elsewhere “I reject the contention that the judge merely states the law and does not create it” (“A Judge on Judging”,

The Role of a Supreme Court in a Democracy Yale Law School 1-1-2002)

Thomas Jefferson expressed his fears of the judiciary when he wrote: “the germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing it’s noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” – Letter to Charles Hammond, August 18, 1821

Israel’s Supreme Court, acts as “Supreme Law Giver,” with its relentless creep of increasing powers that erode the very fabric of society by overriding the democratically elected legislature, usurping powers that were neither granted, never envisaged nor approved of by the democratically elected legislative body. Where are the “checks and balances” that should exist between the judiciary, legislative and executive bodies when the final arbiters are the Judges who can nullify the other branches of government? Judicial activism is an alternative and effective way to promote sociopolitical objectives and rearrange the social order of the day and as a result can have harmful effects which can be devastatingly divisive within the society.

The Supreme Court is on many occasions the embodiment of judicial autocracy in our everyday lives and if left unchallenged can endanger everyone’s liberty and freedom. In order to restore credibility and confidence in the highest court in the land, the process of appointing Supreme Court Justices has to be reformed.

The justice’s nepotism that is characteristic of their commendations in the appointment of Supreme Court Judges is an unacceptable practice and possibly undemocratic. Transparency is essential, potential candidates for the Supreme Court should appear before a bipartisan parliamentary committee for ratification comparable to the US congressional hearings.

And or the Canadian appointment process should be considered,

Peter W. Hogg, C.C., Q.C., Hall Law School of York University “II. THE POWER AND PROCESS OF APPOINTMENT, , the appointment of judges to the Supreme Court of Canada is provided for in the Supreme Court Act.’ The convention that has developed for judicial appointments generally is that chief justice appointments are made on the recommendation of the prime minister and puisne judge appointments are made on the recommendation of the minister of justice. In the case of the Supreme Court of Canada, however, it seems likely that the prime minister is involved in the appointments, of the puisne judges as well as the chief justice.

In the case of the appointment of Justice Rothstein, Prime Minister Harper made it clear that, after the public hearing, he was -going to make the final decision, and he did in fact make the final decision”. “In 2004, the Honourable Irwin Cotler, who was minister of justice in the Liberal government of Paul Martin, introduced a more transparent process to find replacements for retiring Justices Louise Arbour and Frank Iacobucci. He presented the names of his nominees for the replacements to the Standing Committee on Justice of the House of Commons, and he answered questions posed to him by the committee about the search process and the qualifications of the nominees.

In 2005, Minister Cotler announced a new and more elaborate process that ‘R.S.C. 1985, c. S-26, s. 4 provides that appointments are to be made by “the Governor in Council.” After the usual informal consultations with the attorneys general, chief justices, and leading members of the legal profession, the minister would submit a short list of five to eight candidates to an advisory committee composed of a member of parliament (or senator) from each recognized party in the House of Commons, a nominee of the provincial attorneys general, a nominee of the provincial law societies, and two prominent Canadians who were neither lawyers nor judges.

The committee would provide the minister with a short list of three names from which the appointment would be made. All of this would take place on a confidential basis. However, the final step would be public: the minister of justice (but not the appointee) would appear before the Standing Committee on Justice to explain the selection process and the qualifications of the person selected” Our democratically elected representatives are not without blame for the disintegration of their legislative powers.

By and large, parliamentarians, when challenged by the Judges/Lawyers, have mostly submitted to the Courts rulings and abandon much of their legislative prerogatives. This has produced a vacuum for activist Judges to insert themselves into and replace “The Rule of Law or the Rule of lawyers.”