Saturday, August 18, 2007

The Court vs. the Parliament

The weekend edition of Haaretz offers a longish interview with Daniel Friedman, the Minister of Justice who is scandalizing most of the chattering class with his suggestions for reforms in the judicial system.

Unlike, say, the burning issue of aid given to Holocaust survivors, which has us all agog this summer but is at least partially simply spin, the story of the Supreme Court and it's relation to the other branches of government is a long term discussion of real significance, which addresses the question of how Israeli democracy functions and adapts.

The central figure of the drama is what's called the High Court of Justice. So far as I know, this is a unique Israeli invention. It members are the justices of the Supreme Court, but where the Supreme Court has the traditional mission of being the highest instance for resolving cases that have been winding through lower courts, the High Court has a radically different role. It is a tool by which citizens may stop the government or its agencies in their tracks if they are engaging in measures they shouldn't be. The Justices of the Supreme Court and the High Court are the same people (as is the building in which all the cases are heard), but whereas it takes years of litigation for a case to reach the Supreme Court, you can decide to turn to the High Court today, argue your case before it tomorrow, and block the intentions of the government also tomorrow. If the government is about to do something in a hurry, the whole process can happen in a single day.

It's probably not a bad thing that citizens can defend themselves from their government. Healthy for all sides involved.

Back in the early 1980s, when I was teaching about this to high school students, plaintiffs still had to prove to the High Court that they were directly effected by the measure they were trying to have blocked, but this has since changed, and basically anybody can try to stop anything - and, quite often, they do. Nowadays, the assumptions is that any significant move that the government or one of its agencies tries to do will have to pass the High Court first; in essence, this means that the High Court is often second guessing the government.

Since we have a parliamentary system, the task of second guessing the government is supposed to be the parliament's job. That's what we elect the members of Parliament to do, and as you may have noticed, we elect and dis-elect them with great frequency. The justices of the court don't get elected at all, they are appointed. On paper, they're appointed by a commission designed to curtail the influence of the politicians, which is probably a fine thing - except that in recent years, more and more of us have been wondering if perhaps the justices themselves have too much say in who gets appointed to serve alongside them, and if perhaps the group that supplies the justices doesn't have an agenda of its own. Surely not a political agenda in terms of being for this party or against that one, but a cultural and philosophical agenda which many of the voters don't fully agree with. Read the interview I've linked to, and you can see this agenda quite clearly from the scandalised questions of the two interviewers.

Of course, nothing is ever quite what it seems and certainly not what you'd expect. The current attempt at reforming the system is being lead not by the ultra-orthodox politicians, the most obvious group, nor by any of the other obvious suspects. It's being lead by a 72-year-old retired law professor who never participated in politics, was never elected to anything, and is probably not all that far from the cultural assumptions of the justices themselves. Indeed, some of his detractors say that his primary motivation is personal pique.

In spite of the tone of this post, I'm not really sure what my position is on all this. Certainly, I'm not at all versed in the details. Yes, I do think that in a democracy the voters are sovereign, not anyone else, though there must be checks on the ability of the majority to abuse its power, and the best checks may well be the courts. Ultimately, it seems to me, freedom and democracy need to be protected at all times, and the solutions to today's threats could conceivably pose threats of their own tomorrow. Vigilance and keeping an open mind, though they may be slightly contradictory requirements, are both necessary all the time.

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