“The proposed laws risk undermining the rule of law and jeopardising the independence of the judiciary as well as potentially impacting upon human rights … (and) acutely raises the prospect of the erasure of the democracy,” the judges’ body said.
It’s hard to think of a more ill-informed and overblown public statement by a body representing more than half of the country’s judges. Worse, this public intervention into a highly political debate in Israel has placed hundreds of Australian judges in the unfortunate position of having a perceived bias against people who support the judicial reforms. Not to mention suggesting to Australians that our own judges hanker for the kind of judicial activism that defines Israel’s highest court.
For many decades now, Israel has been in the throes of a vigorous debate about the relationship between the Knesset, a democratic body that represents the will of the people, and the power of Israel’s Supreme Court.
For the first 40 years of its existence the court was a highly respected, if occasionally activist, one. Its judgments were scholarly, sombre and legal, as one should expect from the nation’s most senior judges. Israel does not have a written constitution. Instead it has a set of Basic Laws. These were passed by the Knesset with no special majority, without any referendum, with no hint from politicians of them being constitutional in nature, so they have no higher status than any other legislation passed by the Knesset.
However, from the mid-1990s, the Supreme Court used these laws to implement what the court called a “constitutional revolution”. That court-driven revolution created a judicial nirvana for activists the world over. Unlike the highest court in any other Western democracy, Israel’s Supreme Court also assumed for itself power to declare invalid any of the Knesset’s laws if the court thinks they are unreasonable – a frighteningly subjective and capricious test if ever there were one.
Its self-styled “constitutional revolution” was led by Aharon Barak, a judge on the court from 1978 to 1995 and president from 1995 to 2006. He described his role as follows: “The judge of a supreme court is not a mirror. He is an artist, creating the picture with his or her own hands. He is ‘legislating’ – engaging in ‘judicial legislation’. Judicial creativity – judicial legislation – is natural to law itself. Law without discretion is a body without a spirit. Judicial creativity is part of legal existence. Such creativity – ‘judicial lawmaking’ – is the task of a supreme court.”
American legal scholar and former judge Richard Posner has observed that “what Barak created out of whole cloth was a degree of judicial power undreamed of by our most aggressive Supreme Court justices”.
The Israeli Supreme Court’s power grab up-ended the British system of parliamentary supremacy that had existed in Israel for its first four decades.
As Elliott Abrams, senior fellow for Middle Eastern studies at the Council on Foreign Relations wrote in March: “In Israel, neither standing (nor) justiciability have been required: anyone can challenge a law or government decision even if unaffected by it directly, and the Supreme Court can rule on almost any policy matter, including cabinet appointments and even military policies.”
With no hurdles to legal standing or justiciability any foreign-backed non-government organisation, with no personal interest in a domestic Israeli matter, can head to the Supreme Court to overturn legal and political decisions instead of getting involved in democracy the more honest way – by convincing government and the Knesset.
These are powers Australian judges do not have and while ever we remain a parliamentary democracy will never be granted.
Australia’s more activist judges, who can only dream of playing unbridled philosopher king from the bench, must look at Israel’s Supreme Court with great envy. Privately one can imagine how dinner party conversations among those Australian judges might condemn the Israeli government, with a mandate from the people, for raising reforms that realign the power between the judiciary and the Knesset.
But for a representative body of Australian judges to reflect the same sentiment about a highly political issue in a robust democracy is about as stupid as it gets. Even a cursory understanding of these issues would prompt a serious thinker to wonder if it is the proper role of unelected judges to snaffle so much power away from the democratically elected Knesset. Regardless of what one thinks of any or all of the reforms – and remember none is yet law or even close – there is a vigorously rowdy and healthy debate in Israel.
Amid this exercise of democracy, the judges’ body – with ill-informed and overblown language – has made hundreds of our most senior judges appear like political interlopers in the affairs of a democratic country. Unsurprisingly, the Australian Jewish Association led by David Adler wrote to the AJOA to explain the reforms. The response from the judge’s body was glib, bordering on rude, refusing to engage in careful argument about the delicate balance in democracy between the courts and parliament. When the AJA sent a further letter explaining the carefully calibrated nature of the reforms, which the AJOA says risk undermining democracy, the judges’ body didn’t respond at all.
Worse than its rudeness, the AJOA has put the nation’s judges in a most unfortunate position of perceived bias. Consider what might occur if a person who supports reforms to reinstate parliamentary supremacy in Israel is defamed by someone who says such a position undermines the rule of law, jeopardises the independence of the judiciary and damages human rights.
As the AJA pointed out to the judges’ body, such a person who sues for defamation may well find themselves before a judge who, as a member of the AJOA, has been represented as condemning, rather than supporting, the judicial reforms being debated in Israel.
This potential for perceived bias is untenable. And it could have been so easily avoided.
The AJOA’s unwarranted statement raises a deeper concern for the rest of us. When a group of Australian judges is so exercised by reasonable attempts to curb Israel’s activist court, it is a sign of the activist preferences of some of our own judges. Here’s a safer course next time this group of judges want to say something publicly about the rule of law. Look around our own country where almost daily the rule of law is being undermined, where the presumption of innocence is emasculated, where equality before the law is being ignored. That would be an opportune time for Australian judges to raise their voices about fundamental legal principles central to our own democracy. Hello? Judges? Anything to say here?
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