Though it is difficult to know to what extent this factor has affected the attorney general’s actual decisions on indictments of public officials, it seems that in the years since the court began its practice, there has been a noticeable increase in indictments in borderline cases. The result has been a rash of high-profile acquittals in recent years. These have included three mayors—Ehud Olmert of Jerusalem, Eli Landau of Herzliya, and Rafi Hochman of Eilat—and two cabinet members: Former Agriculture Minister Rafael Eitan and former Justice Minister Ya’akov Ne’eman. And frequent acquittals inevitably lead concerned members of the public to one of two conclusions: Either the courts are acquitting people who should have been convicted, or the prosecution is indicting people who should never have been brought to trial. While either one of these options would be detrimental to faith in the justice system, Gavison evidently believes—correctly, in my opinion—that the latter is far more likely, and thus concentrates her fire on this point.

The problem with repeated acquittals of public figures, Gavison argues, is that they expose the state prosecution to charges that it is indicting public figures on the basis of political considerations rather than because of well-grounded suspicions of criminal wrongdoing. Indeed, such charges have been heard increasingly in the last several years. And as Gavison correctly notes, this problem is exacerbated by the Supreme Court’s ruling in the Der’i case that ministers and other public figures must resign upon being indicted, because in such a case, an unwarranted indictment effectively nullifies the voter’s choice by forcing the elected official out of office even before he has been tried.

The Eitan case provides a good example of this process. Eitan was indicted shortly after the 1996 elections for allegedly using confidential information from the Israeli army four years earlier to discredit a political opponent in his Tzomet party. Even before the indictment was filed, the attorney general, basing himself on the Der’i precedent, barred Eitan from receiving the powerful Ministry of Public Security, on the grounds that if he were to be indicted, his credibility in handling sensitive security information would be compromised. His acquittal in February 1997 by the Haifa Magistrate’s Court came too late to change Eitan’s position within the government, where he had been forced to settle for the Agriculture Ministry. And this inevitably fed the grievances of Eitan’s supporters, who saw their candidate deprived of an influential position by what later appeared to have been an unwarranted indictment.

An even more telling case is that of Ne’eman, which began with a petition to the High Court by journalist Yoav Yitzhak in 1996, shortly after Prime Minister Benjamin Netanyahu named Ne’eman as his justice minister. The petition accused Ne’eman of having suborned a witness in the criminal investigation of Interior Minister Aryeh Der’i. This allegation was based on a police memo whose existence the State Attorney’s Office had been aware of for four years, but had never previously deemed worth investigating. Under pressure from the High Court petition, the office suddenly decided it had to investigate the case; and when it found no evidence to support the subornation charge, it decided to indict Ne’eman for perjury instead, due to alleged inaccuracies in his responses to the High Court and to the police investigation. When a trial court not only found him innocent, but said there were no grounds for having indicted him in the first place—long after it was too late for him to return to the ministerial post he had vacated upon being indicted—this naturally fueled public suspicions that the prosecution’s motives in this case had been less than pure. But the entire sorry episode would probably never have occurred had the prosecution not felt pressured by a court petition to take action on a case it had previously considered unimportant.

When too many political figures are being acquitted, the public naturally begins to suspect the prosecution of political bias. The inevitable result, Gavison concludes, is that the prosecution’s “legitimacy and the [public’s] faith in its professionalism” are substantively undermined. And these are indispensable components of the public’s faith in the legal system as a whole.

A third crucial aspect of the rule of law is the legitimacy that the law itself enjoys in the eyes of a country’s citizens. In traditional democratic theory, the law obtains its legitimacy from the consent of the governed, by means of their chosen representatives. And it is here, perhaps, that the court’s distortion of the meaning of “the rule of law” is most dangerous. For what arises from Gavison’s essay is that the court has been gradually promoting the theory that the law’s legitimacy derives not from the decisions of legislators acting on behalf of their constituents, but rather from the court’s own approval.

That so bizarre a view of democratic theory has been gaining currency, at least among certain politicians, journalists, and legal scholars, can be seen in those rare instances when the Knesset has acted to overturn the results of a particular court decision. When, for example, the High Court ruled in October 1993 that the government’s policy of banning imports of non-kosher meat was a vio­lation of Basic Law: Freedom of Oc­cupation, the Rabin government over­­­rode the court by passing legislation explicitly banning such im­ports. Though this law carried a clear majority in the Knesset, its passage triggered a wave of denunciations, in large part because the legislature was seen as going against the wishes of the Supreme Court.

There was an even greater outcry in October 1994 when the Labor Party and Shas reached a coalition agreement stipulating that Supreme Court decisions overturning long-established precedents on issues of religion and state would be met with legislation restoring the status quo ante. Justice Minister David Liba’i, himself of Labor, was quoted in the daily Ha’aretz as claiming that the agreement “would destroy basic values of democracy,” and that it would “establish new norms that are opposed to the values of democracy and of the constitution in-the-making in Israel.” A number of public figures and groups opposed to this provision of the agreement then petitioned the High Court, asking that the coalition pact be ruled illegal. In the initial hearing, all three justices made it clear that they considered the agreement improper, as a result of which Labor and Shas watered down the language of the controversial clause. The court then ruled, 3 to 2, that the agreement was still improper, but no longer so improper as to be illegal; the dissenters, led by Aharon Barak, insisted that even the new, weaker version undermined the rule of law, and was therefore illegal. Thus, as Gavison correctly notes, the minority in this case—and the majority would almost certainly have done the same had the clause not been rewritten—was, in the name of “the rule of law,” attempting to deprive the Knesset in advance of the right to legislate on various issues regarding the religious status quo.

Gavison justly ridicules the idea that the Knesset should be barred from overturning High Court decisions. Since the court’s role is to interpret the laws the Knesset passes, she writes, it is hardly illegitimate for the latter to amend and clarify legislation if it believes the court has misinterpreted its intent. “Does the High Court of Justice have a monopoly on [the right] to determine what the laws should say?” she asks incredulously. But that is precisely the assumption underlying the claim that laws to overturn a given ruling are illegitimate: That the court has the right not only to interpret, but also to dictate the content of legislation. In short, in the name of the rule of law, the court has begun usurping the Knesset’s function and effectively seeking to dictate the contents of legislation.

Israel. Oddly enough, however, one of the few issues on which they are in agreement is one that seems to undercut the significance of the entire book: The claim that the phenomenon whose merits they are debating is becoming less pronounced. Indeed, all three authors appear to believe that the court’s aggressiveness in overturning government decisions peaked more than a decade ago, and that it has been moving in recent years towards greater restraint. As Dotan writes in the introductory essay, “A series of verdicts issued in the 1990s express a different trend than the unhesitating activism described above [in the 1980s].”

This claim is certainly not entirely unfounded: It was in the 1980s that the court took the radical step of virtually eliminating procedural barriers to an increased judicial role, such as standing (the principle that only someone with a direct, personal interest in a particular government action is allowed to petition the court against that action) and justiciability (the principle that certain questions are inappropriate for the court to decide). It was also in that same decade that the court first asserted its right to intervene in a host of areas, from foreign affairs to the internal workings of the Knesset. Yet when one reviews the record of the 1990s, it is hard to fathom what grounds the authors of Judicial Activism could have for deeming this decade one of greater restraint.

To begin with, it was in the 1990s that the court first began using many of the powers it had asserted in the previous decade. To take but one example, the court first asserted its right to review coalition agreements in the 1980s. But it was only in 1990, in Zherzhevsky v. the Prime Minister, that it first overturned a section of a coalition pact, nullifying an agreement between the Likud and a small faction named The Party for the Advancement of the Zionist Idea.

Even more important is the host of completely new areas in which the court has asserted or acted on its prerogative to review legislative and governmental activity during the past decade. First and foremost, of course, is its assumption of the right to overturn Knesset legislation, which it asserted in the case of United Mizrahi Bank v. Migdal Cooperative Village (1995). Another decision whose importance is hard to overestimate was its ruling, in Amitai v. the Prime Minister (1993), that the attorney general, rather than being the government’s legal counsel, is in fact its legal arbiter, whose opinions are binding on the government. By giving an unelected official the power to overrule the elected government, the court has significantly curtailed the government’s powers.

The last decade also saw an un­precedented incursion by the court into the sensitive issue of religion and state, where it overturned many long-established precedents: It overruled a ban on the import of non-kosher meat (Meatreal v. the Prime Minister, 1993), ordered the religious courts to use secular rather than religious law to divide property in divorce cases (Bavli v. the Rabbinical Court of Appeals, 1994), ruled the Orthodox rabbinate’s monopoly on conversions illegal (Pasaro v. the Minister of the Interior, 1995), and overturned the system of draft deferrals for yeshiva students (Rubin­stein v. the Minister of Defense, 1998).

But it is in the realm of foreign affairs that the authors’ conclusion rings particularly hollow. In this area, Dotan offers two specific examples to back up his claim of increased judicial restraint: The court’s refusal to intervene in the GSS’ interrogation techniques; and its refusal to order the government to release several Hez­bollah members jailed in Israel, whom the government was holding in order to exchange them for Israelis held by that organization. In both of these cases, however, the court reversed its previous nonintervention after Judicial Activism went to press: In September 1999, it ruled the GSS’ interrogation techniques illegal; and in April 2000, it ordered the government to free the Hezbollah men.

But if the court’s activism has shown no signs of abating, then scholarly and public debate on this issue becomes all the more significant—which in turn makes Judicial Activism, For and Against all the more essential. Indeed, as the authors state in their preface, this was precisely their purpose in writing the book: “To provide a basis for public debate on the role of the High Court of Justice in Israeli society.” One can only hope that this excellent book accomplishes its goal. And if a genuine public debate on this issue does emerge in Israel, then Gavison, Kremnitzer, and Dotan will deserve a healthy share of the credit.

Evelyn Gordon is a journalist, and a Contributing Editor of AZURE.