Monday, January 2, 2012

The Law In These Parts

The Knesset is about to pass a bill that will amend a little restriction on the way the Chief Justice of the Supreme Court is elected. From now on, the candidate for Israel's highest judicial post need not be at least three years before his or her 70th. birthday, hence, the age of mandatory retirement. The Knesset is also set to pass another bill that will change the weight of the various electors on the Judicial Appointments Committee, so as to tip the balance in favor of the Justice Minister.

The first change will allow Asher Grunis, known for "rightist" views, to be elected head of the court. The second would permanently transform the way appointments to the court are made, so as to strengthen the legislature's power over its composition.

ON THE SURFACE, these are fairly trivial changes. Okay, it is wrong to tinker with a law to accommodate a particular figure. But that figure may represent a class of people that, arguably, never should have been disadvantaged in the first place. Think of changing the U.S. constitution to make it possible for Arnold Schwarzenegger--and thus all naturalized immigrants, Arianna Huffington, say--to run for president. Who says an immigrant is not a real American? Similarly, who says a Chief Justice cannot contribute something substantial in two and a half years, or one and a half? And why should the legislature not have a decisive say over the composition of the court, the way, say, the Senate does in the U.S.?

As I argued here a couple of years ago, these questions miss the point entirely. Israel has no liberal constitution the way the U.S. does. I mean a constitution that protects individual human rights as a matter of law. This tinkering is a way of changing the legal status of liberal-democratic life.

Israel has a "basic law," The Law of Human Dignity, which the Supreme Court has been generally interpreting broadly so as to protect human rights on an ad hoc basis. Unlike other basic laws, this law can be repealed by a simply majority of the Knesset, but no government has (yet) been brazen enough to repeal it. So long as the Law of Human Dignity exists, and no constitution exists, Israel will remain a place in which ordinary human rights are protected only if sitting justices have ordinary liberalism in their bones.

And here is where Grunis comes in, and ways of electing justices that promise more candidates with his cast of mind. Justices who think "Zionism" (the common word now for ultra-nationalism, protecting the settlement project, etc.) trumps individual conscience will open the door even wider to the tyranny of the majority. The superb documentary, "The Law In These Parts," shows that, at least with respect to Palestinians in occupied territory, the judiciary has already compromised civil rights to the point that it has become window dressing on a repressive and often brutal regime. Moving the needle on Israeli "leftists" could easily come next, especially now that military courts can try them.     

IT IS TRUE that the Israeli legal community has been, on the whole, far more liberal than the public. It is also true that the legal community has been, correspondingly, more highly educated, and more "Ashkenazi," than the public. And it is true, finally, that election to the Supreme Court has in the past been something like election to the leadership of a guild by its members: judges, the heads of the Bar Association, etc. have constituted a self-perpetuating elite choosing justices the way tenured professors choose deans.

But these sad facts have kept Israel inside the green line a more or less free country much the way the tenure system has kept its universities more or less bastions of free thought. Liberal-democracy has been protected by more liberalism, less democracy. Passage of these changes will portend the transformation of the Supreme Court into an instrument of a rightist coalition that is not soon going away. Without a liberal court, civil rights in this country will go into eclipse with the eerie, perceptible speed of the sun setting over the Mediterranean.