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PDF FormatIn the mid-1980s, the Supreme Court, under the stewardship of President Meir Shamgar, undertook to ease substantially the restrictions on standing and justiciability. In the landmark 1986 Ressler case, for instance, the court agreed to hear a petition against the exemption from military service that yeshiva students had traditionally enjoyed. Petitions had previously been filed twice on this issue, and both times the court had ruled that the matter was not justiciable. In 1986, however, a three-judge panel including then-justice Aharon Barak held that the issue was justiciable, while rejecting the case on its merits.
At about the same time, the court issued a landmark ruling on standing limitations. In 1987, Citizen Rights Movement MKs Shulamit Aloni and Dedi Zucker petitioned the court against the justice minister’s refusal to extradite William Nakash to France, where he was wanted for the murder of an Arab. Justice Menachem Elon, in his dissent, upheld the court’s traditional position that the petitioners had no standing. However, the other four justices, led by President Shamgar, asserted a new standard: Since no one else in the country had a more direct interest in the case, and it was a matter of genuine public interest, the court would hear the petition. Since these rulings, the erosion of standing and justiciability restrictions has continued unabated.
Parallel to the court’s rapid expansion of the range of cases it would hear was a second development, the emergence of a far-reaching “reasonability” standard for judging government decisions. Whereas once the court would consider only whether a government action accorded with the letter of the law, the court began routinely overturning decisions which it considered “extremely unreasonable,” on the grounds that extreme unreasonability is ipso facto illegal. In the words of Shamgar, “unreasonability that extends to the heart of the issue makes the decision of a government authority illegal.”9 The result of this new standard, especially when combined with relaxations on standing and justiciability, was that the range of decisions which could potentially be overturned became almost identical with the totality of government action. The court has made increasing use of the reasonability standard since the early 1980s; during the current decade, employment of this standard has become the norm.10
It was against the backdrop of the radical widening of the judiciary’s domain that the third impetus for activism emerged: With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the Knesset implicitly granted the Supreme Court power to strike down subsequent Knesset legislation that it found to be in violation of the rights embodied in the Basic Laws. Whereas previously the court could and did overturn government actions which did not accord with existing Knesset laws, a determined government always had a recourse: It could pass new legislation giving sanction to the policy the court had struck down, thereby tying the court’s hands. The 1992 Basic Laws did away with this recourse; by stipulating that no subsequent legislation could violate the principles protected therein, the laws in effect gave the court the ability to overturn any new legislation that, in its opinion, contradicted those principles. And although the Basic Laws shielded previously-existing legislation against court review, the Supreme Court has taken the laws’ passage as a green light to reinterpret past legislation according to the values endorsed in the Basic Laws.
With the breaching of standing and justiciability restrictions, the increased use of the reasonability test and the passage of the Basic Laws, the Supreme Court has dramatically increased its involvement in the day-to-day governance of the country. In the past five years, it has nixed the cabinet’s choice for director-general of a government ministry, forced a minister and deputy minister to resign, overturned a Knesset decision to lift an MK’s parliamentary immunity so that he could stand trial, and denied the government the right to continue a fifty-year-old ban on the import of non-kosher meat. It has overturned the attorney-general’s decisions not to try certain public figures, prevented the government from dismissing its civil service commissioner, and even overturned the Israel Prize Committee’s choice of a prize recipient. Indeed, one gets the impression that to Israel’s Supreme Court, virtually no government action is too political, too controversial or too trivial to escape its vigilant eye.
III
The implication of the Supreme Court’s radically expanded role is that judicial activism in Israel can never again remain a purely academic issue. And indeed, the court’s behavior has occasionally been called into question in the broader public forums and national media. Until last year, however, the public debate over judicial activism generally occurred in a sporadic, almost lackadaisical fashion. Occasional newspaper columns were written, and MKs periodically raised a fuss when court rulings infringed on their prerogatives. But in August 1996, when the Supreme Court issued an injunction against the Sabbath closure of Bar-Ilan Street in Jerusalem, Israel for the first time faced a full-throated outcry against judicial activism.
The case, at first glance, seems hardly the stuff that defining constitutional moments are made of. The mainly haredi population of Bar-Ilan Street wanted the road closed on the Sabbath, as is already the case for many other roads in predominantly religious neighborhoods in Israel. In 1995, a commission set up by the Jerusalem municipality had recommended closing the street during prayer times, but the Transport Ministry’s official traffic supervisor—whose approval is needed since Bar-Ilan is considered a major artery—refused to approve the closure. After the 1996 elections, the new government asked supervisor Alex Langer to reconsider his position, and this time he acquiesced. Labor party activist Li’or Horev and MKs Ophir Pines (Labor) and Yossi Sarid (Meretz) promptly petitioned the High Court against the move. A seven-justice panel chaired by President Aharon Barak issued an injunction against the closure, citing questions about the reasonability of the supervisor’s decision.
It was in response to this decision that Yated Ne’eman, a mainstream haredi daily, published an editorial branding Barak, the driving force behind the court’s increasing activism, as a “dangerous enemy” of both Judaism and democracy:11
He is stronger than any government. He overshadows the police, the legislature and also the executive. With one stroke, he can remove a minister from his post or deprive a party of the right to run in the elections.12 Democracy has ended. The rule of the people has ended.... [Barak] has arrogated to himself the right to decide for me and for you what we are permitted to think and what we have the right to fight for.13
The editorial went on to attribute the court’s unusual power to its claim to being above politics, to which it proposed a simple solution: If Supreme Court justices were going to act like politicians, they should be treated like politicians. Once Supreme Court justices were subjected to the same public criticism that held legislators in check, the editorial claimed, they would lose their superhuman status, and their power would dwindle accordingly.
A similar piece appeared in the more sensationalist haredi weekly Kol Hashavua, entitled, “Target: Barak.” The article was prefaced with the following words:
Aharon Barak is the driving force behind the sophisticated battle being waged against the Jewish viewpoint in Israel. We must not disperse the shells. We must throw down the gauntlet and oppose him frontally, and show him as he is—as someone implementing a “judicial revolution,” as a threat to the citizen’s right to shape the country in which he lives.
The remainder of the article was a lengthy assault on the secular left in general, which ended with a call to concentrate the fight on “the secular regime’s trump card: The Supreme Court.”
A “smart” war should be waged to reveal the undemocratic, dishonest and unconscionable efforts of a man called Aharon Barak to force his views—which are far from those of the decisive majority of Israel’s Jewish citizens—on the people of Israel.He should be portrayed in his true arrogance, as a danger to the character of Israeli democracy, as a threat to the citizen’s power to decide for himself how his country should be run. We must take away, through [another] “judicial revolution,” the authority which is not his and was never granted him—because no one elected him, and he never submitted his governmental aspirations to any real public test.The battle must focus on this man.... for to defeat Barak and the forces he represents, he himself need not be defeated; it is enough to crack the armor of straw which protects him as a figure who is above political controversy. For the minute he is part of the political game, even if he wins he will have become mortal and vulnerable (of course, this means vulnerability on the level of ideas—not, God forbid, anything else).In this war, one must not act foolishly. It is forbidden to act without civility, since in doing so, you will not convince anyone of anything—except that you are a boor.14
Predictably, the article’s bellicose language—particularly the references to Barak’s mortality—drew heavy fire from the public, who ignored its disclaimers to the contrary and read it as a call to violence.
