Author Argues Israeli Judicial Power Paradigm Has Collapsed
A recent analysis posits that the paradigm of increasing judicial power, established over decades by former Supreme Court President Aharon Barak, has collapsed. The author contends that the question is no longer whether this paradigm will fall, but rather what system will replace it, urging for a structured and constitutional preparation to prevent catastrophic clashes between elected institutions and the judiciary.
Barak is credited with building the foundations for a "juristocracy," a system where judges hold ultimate legal authority. His tenure, beginning in 1978, saw two major shifts. In the 1980s, power was significantly transferred from the Knesset and government to the courts through measures like eliminating standing requirements for lawsuits and expanding judicial review to all matters. Barak also broadened the scope of reasonableness, allowing intervention in cases beyond mere absurdity, and used this to block appointments that might challenge his established power structure.
In 1995, Barak transformed the Basic Law: Human Dignity and Liberty into a full constitutional document, disregarding its original intent and incorporating rights not initially intended by the Knesset. He also declared basic laws as part of the constitution, overturning previous precedents. The author criticizes Barak for suppressing challenges from other justices, such as Grunis and Danziger, and for blocking the appointment of Ruth Gavison, who opposed judicial activism, instead favoring a political appointee.
Following Barak's retirement, the Supreme Court, according to the analysis, entered a period of instability. Justices Hayut and Amit are accused of further expanding the court's power, even to the point of invalidating basic laws. The article claims the court has become a clear participant in political struggles, manipulating compositions to achieve political outcomes, threatening civil servants, blocking appointments, and inventing constitutional law without basis in established legal principles or Western democracies. This era is described as "post-law," where the attorney general's opinion is equated with law.
The author references Yonatan Adiri's book "The Event Has Ended" to illustrate how empires collapse due to an inability to recognize paradigm shifts. Barak, it is argued, shifted Israel from a parliamentary democracy to a constitutional one, and subsequent justices turned it into a "tyrannical juristocracy." This situation is deemed unsustainable, with the public unlikely to accept continued "oppression." The piece concludes by calling for a constitutional arrangement, possibly through a Basic Law: Legislation, that would protect basic laws from frequent political changes and establish an elected constitutional court, chosen by the Knesset, to review laws, thereby returning sovereign power to the people.
