Much noise is being made of late regarding the legal reforms proposed by the new government of Israel. People babble about “the end of democracy” and other such nonsense, while I receive frantic emails from friends in the US about how Israel is inching towards a fascist future. Nothing could be further from the truth. The truth is that the High Court of Israel is about to receive a long overdue clipping of its wings.
Aharon Barak, as head of the Court, 30 years ago decided that the Court could judge any issue. His “hakol shafit” approach led to endless filings on any and all subjects, as legal standing was not a prerequisite for filing a “Bagatz”–just file and pay the fee. As Israel has no formal constitution beyond a few “basic laws”, the Court had no guardrails and could hand out rulings according to the judges’ political or personal leanings. Almost every topic of the day—ultraorthodox and the Army, the course of the separation wall, kashrut, conversion, terror cases—made its way to the High Court, and the judges—and not the elected government and Knesset—had the final word on virtually every important public topic in the modern state of Israel. And finally, after every government for the past twenty years swore up and down that it would deal with the judiciary, maybe, just maybe the time has come to limit the scope of the High Court’s activities and make it much harder for them to make laws in the place of the elected representatives of the citizens.
America, having a formal Constitution, has the benefit of clearly defined areas of activity for the executive, legislative, and judicial branches of government. Each serves as a check on the others. Yes, the Supreme Court can and does declare properly enacted state and federal laws unconstitutional, but the Congress or state houses can pass new laws to overcome the objections of the justices. Here in Israel, the High Court made itself the last word on every important topic in Israeli society. Who is a Jew? The court would decide. What to do with yeshiva students and the army? The court threw out the existing agreement and told the government to come back with something else. This role of an unelected judicial body determining the future of the Jewish state and its inhabitants has been intolerable, not only due to the judges not being elected but also because their approach to law is not surprisingly far to the left of center.
In the terror attack in which our son and I were injured, a young couple was murdered. The woman was pregnant with twins. She died on the spot while her husband did not make it through surgery at Hadassah. They left behind two young girls. After years of litigation, the Shemesh family proved in court that the Palestinian Authority had played a major role in the 21 March 2002 attack and were given a 13 million shekel judgment. Until it went to the High Court. The judges there threw out the million shekel for the mother of the murdered young husband. And for the two girls, the Court reduced each from six million shekels to three. Anyone who understands terror and deterrence knows that financially crippling terrorists is a great way to put them out of business. But not for the High Court. A mother who lost her son and had to help bring up two young granddaughters—nothing for you. And for those girls who lost their parents to PA terror—get by with 3 million instead of the six decreed by a lower court.
And this is just one small example of the High Court’s high hand. I recall them requiring the Rabbinate to give kosher certification to restaurants open on Shabbos—they claimed that being open on Shabbos did not affect the Shulchan Aruch kosher status of the food. They told the army where to put the separation barrier, not based on the army’s best estimate on how to keep terrorists out but rather on the High Court’s feelings as how best to help a future Palestinian state. They have put their finger on the scale of halachic issues such as conversion and “who is a Jew” and they have thrown out laws passed by majorities of the Knesset. Nobody even thinks about what the government or the Knesset does—will it pass the High Court is always the first question? And when the law or ruling does not, what comes next?
I have had a few personal scrapes with the High Court. There was a time when the Palestinians last had elections when news outlets were allowed to interview arch-terrorist Marwan Barghouti in jail. According to rules for security prisoners, this was forbidden. So we filed a petition to the High Court to have his microphone taken away. What did the Court do? They waited months until the PA elections had passed and then said that since he was not being interviewed any further, the matter was irrelevant and the case was closed. In the case of the release of 1,000 security prisoners for Gilad Schalit, it was a foregone conclusion that the High Court would let the deal go through. But the lawyers for the terror victims pointed out that according to the law, clemency can only be granted to a prisoner if the injured parties are given two weeks in which to petition the president of the state of Israel as why not to let the bad guy out. The lawyers pointed out that the terror victims, thousands of them, were not contacted by the government but were directed to an Excel chart to see if “their” terrorist was on the get-out-of-jail list and anyway it was a mere 72 hours between announcement and release. The three judges, one of whom was sleeping, said that they were right about the law requiring two weeks but the deal would go through as planned. What about the letter of the law? Not of interest as they simply did not want to be accused of causing harm to Schalit by delaying the Hamas-dictated terms.
The High Court is in need of recalibration. It can play an important role in Israeli society, but it must be given a specific sphere of activity related to judicial matters. It can no longer be the final world on legislation, Jewish law, and Israeli society. Fixing the High Court is not destroying democracy; rather, it is allowing democracy to flourish.