While most Israelis have been caught up in the general elections fever brought on by the election of the socialist workers' boss and radical post-Zionist Amir Peretz to the helm of the Labor Party, another contest has been unfolding in the shadows.
The long-run consequences of this other contest may very well surpass in importance the issue of who will stand at the head of the next government and by what margin Labor will be defeated in the next elections.
Last Friday, the day after Peretz's primary elections victory over Vice Premier Shimon Peres, Supreme Court President Aharon Barak went to war against Hebrew University law professor and human rights activist Ruth Gavison, who Justice Minister Tzipi Livni wishes to nominate to the Supreme Court.
In public remarks, Barak launched a stinging attack against Gavison for what he referred to as her "agenda," noting that it was "not good for the Supreme Court."
The notion that the Supreme Court appointment of Gavison – a fellow secular leftist from his university – could get Barak bent out of shape is a sign of the insularity and juridical uniformity of his court. One can scarcely imagine how he would react were the possibility of nominating a religious, right-wing jurist to the court ever raised.
Before examining Gavison's agenda some things must be understood. First, while judicial candidates are formally nominated by the justice minister, they are approved by the judicial appointments committee, half of whose members are controlled by Barak.
Over the past decade, judicial nominees have been presented by the justice minister to Barak for his approval before their names were made public or referred to the committee. That is, in almost every case over the past decade, Barak controlled the nominations and approvals processes for all nominees to the Supreme Court as well as to the magistrate and district courts. As a result, almost every judge in Israel owes his or her position to Barak.
For Gavison to be approved by the committee, one of Barak's loyalists would have to defect. And even in the unlikely event that Gavison is approved by the committee, her presence in the court would not exactly signal a major change in its views. Gavison would be just one among 15 justices – the rest of whom have been personally selected by Barak.
Given this, Barak's attack on Gavison must be seen as an act of hubris of the first order. It is a reflection of Barak's elitist view that anyone, regardless of his or her professional credentials and intellectual caliber, who does not agree with Barak's own judicial agenda, is unworthy of a court appointment. What Barak seeks is not a wise, fair and professional judiciary, but a uniform one – molded in his own image.
Barak has a twofold agenda. First, in the best tradition of French philosopher and proto-totalitarian Jean-Jacques Rousseau, Barak believes that the court should be a vehicle for foisting the world view of what he refers to as the "enlightened public" on the rest of the country. Second, Barak believes that "everything is justiciable."
That is, from Barak's perspective, the Supreme Court may and by rights ought to assert its authority over the Knesset and the government and should ensure, through its judgments on matters of policy and legislation, that the government and the Knesset do not stray from the bounds of what is legitimate.
For Barak what is legitimate is not defined by law, rather it is dictated by himself and his underlings who act as the repositories and adjudicators of the common good.
In sharp contrast, Gavison believes that under Barak's absolutist leadership the Supreme Court has overreached its mandate and has contributed to the erosion of Israel's democratic system. Gavison has stated countless times that it is of paramount importance that the court desist from supplanting the Knesset and the executive arms of the government by dictating norms of permissible actions, sticking to a strict interpretation of the laws and leaving legislation and policy making to their legally mandated bodies.
That is, Gavison objects to Barak's imperial judiciary and to the judicial activism his agenda prescribes.
Aside from that, in spite of her leftist political views, Gavison has made clear by word as well as by her public activities that she believes in the importance of the Jewish, Zionist content of Israel's national identity. Toward the end of preserving and upholding this identity, Gavison has actively and honestly engaged religious Zionist leaders over the past several years in repeated attempts to reach a meaningful consensus on the significance of Israel's identity as a Jewish state.
For Gavison it is important for the long term durability and health of Israeli society for society to be inclusive and for all the various strands of the public to have an actual stake in the future of the state.
For her opposition to secular, leftist supremacy and its normative legislation by judicial fiat, Gavison has been reviled by the members of Barak's so-called "enlightened public" of which she had previously been a prominent member.
In a hysterical and nasty broadside against Gavison, Avirama Golan, one of the high priestesses of leftist elites, wrote in her column in Ha'aretz on Tuesday, "Gavison has chosen to compromise with the settler dialogue" – something which Golan, Barak and their comrades in the "enlightened public" believe to be an unforgivable sin. In her words, "It is forbidden to compromise with [the religious Zionist] view, rather a principled struggle must be carried out against it."
The court under Barak has undermined Israel's democratic system of government in three basic ways: It has seized legislative and executive powers from elected representatives of the people; it has discriminated against Israeli citizens based on their political and ideological views and has caused this discrimination to be institutionalized in the prosecutorial practices of the state prosecution; and it has narrowed the borders of legitimate political action and debate in the state to the point where the actual results of general elections have little impact on the policies adopted by the government or the laws promulgated by the Knesset.
The net result of all of these actions has been the effective disenfranchisement of Israeli citizens and the distortion of Israeli politics and law to the point where it is difficult today to view Israel as a democracy.
Over the past year alone, in countless judicial decisions Barak's court has undermined the independence of the government and the Knesset and has discriminated against sectors of the public whose views do not jibe with the court's political and ideological prejudices.
Last month the court outlawed the IDF's practice of having Palestinians knock on the doors of wanted terrorists in order to shield Israeli security forces from attack. The court based its ruling on the Geneva Conventions even though the Knesset has never ratified their applicability to Judea, Samaria and Gaza.
Also this year, in a series of rulings regarding the route of the security fence, the court has repeatedly second-guessed the Defense Ministry's judgment of how Israelis can best be defended from terrorist attack. The court based its authority to interfere with the Defense Ministry's executive authority on the International Court of Justice's (ICJ) July 2004 advisory opinion on the security fence. Yet the ICJ has no legal standing in Israeli law. Indeed, in the case of the advisory opinion on the security fence, (which has no international legal weight anywhere), the Justice Ministry rejected the ICJ's right to even discuss the matter and refused to send representatives to presen
t arguments at the Hague.
As to the protection of the rights of citizens, the court has exhibited a consistent judicial prejudice in its judgments that is based on the ideological and religious identity of the petitioners.
In its ruling upholding the Evacuation and Restitution Law regarding the restitution of Israeli citizens expelled from their homes, businesses and communities in Gaza and northern Samaria this past summer, the court ignored the fact that the law trampled the property and civil rights of the thousands of Israeli Jews who were expelled. In parallel cases Barak has argued that Israel's Basic Law "Human Dignity and Freedom" forbids legislation that impinges upon parallel rights of Palestinians and Arab Israelis.
The prejudices of the court have been internalized by the state prosecution in two ways. First, in 1998 the government was forced to accept that all its nominations for the top positions in the state prosecution must be approved by a committee headed by retired Supreme Court justice Gavriel Bach; Barak's colleague now controls who may or may not lead the state prosecution.
Secondly, it is now expected that both the State's Attorney and the Attorney General will at the end of their tenure be appointed to the Supreme Court. As a result the state's prosecution's policies are indirectly determined by Barak who has the power to decide whether or not they will be promoted, so rather than acting as the executive arm of the government, state prosecutors today act as agents of the court.
As a result of the court's activism, the ability of Israeli citizens and elected politicians to carry out national debates on policy issues has been severely and dangerously curtailed. When every citizen knows that the government can unceremoniously stomp on the civil and property rights of Jewish Israelis but can take no action to prevent the murder of Israeli citizens if doing so impinges in any way on the civil or property rights of Arabs, it is clear that the government and the Knesset can only successfully advance policies that move in one direction: left.
The restrictions that the court has placed on the political debate in Israel by clearly delineating permissible and impermissible actions in everything from military operations, budgetary priorities, legislative initiatives, media reforms and the allocation and use of public and privately owned land has made it impossible for an open, free and democratic debate to be conducted.
In the current state of affairs, it is impossible, for instance, to discuss ways to deport non-citizens involved in acts of violence as France is now doing. It is impossible to discuss the possibility of applying Israeli law beyond the 1949 armistice lines. It is impossible to discuss the possibility of winning the war against Palestinian terror. It is impossible to discuss the equality of citizens before the law. And as a result, it is impossible for citizens to assume that the government and the Knesset, as the elected representatives of the people will work to advance the interests of the people as they manifested themselves at the ballot box in general elections.
When one wonders why it is that Israel's right-wing governments have been implementing leftist policies for the past decade, one need look no further than the imperial Supreme Court for the answer. Until the court's monopoly on power is broken, the public can hold no hope that its will as determined at the ballot box will be followed by its elected representatives. Indeed, until the judiciary is brought to heel, it is open to question whether Israel can be considered a democracy at all.
Originally published in The Jerusalem Post.