The High Court (Photo: Gil Yochanan)
Ben-Dror Yemini
Why are they afraid of criticism?
Op-ed: 'It is doubtful whether there is another civilized country where the court assumes such authority and violates the separation of powers as Israel does...In most civilized countries an issue such as the gas plan would never have gotten to the Supreme Court'.

The US Congress decided to limit the impact of giant corporations and associations on elections. There was bipartisan consensus on this matter. But the US Supreme Court decided to invalidate the law, because it violates the freedom of speech of corporations.



The American leadership was furious. Even if Netanyahu and Ayelet Shaked made an effort, they did not attain the level of Obama's and the leading newspaper editorials' rage.


Needless to say the US Supreme Court's decision is a scandal: the intervention that serves the wealthy while trampling the legislature's just decision.


The High Court (Photo: Alex Kolomoisky)
The High Court (Photo: Alex Kolomoisky)


A few days passed after the verdict was passed on the gas plan, and the president Israel's Supreme Court , Miriam Naor determined that the criticism leveled against the decision is "not worthy of a democratic state. "It is not clear from where Naor drew her assertion: it is doubtful whether there is a properly functioning country where judicial decisions on matters which involve governance do not receive sharp criticism from academics, politicians and journalists. Only in dark regimes are judge not criticized.


In general, it is doubtful whether there is another civilized country where the court assumes such authority and violates the separation of powers as Israel does.


It seemed that something had changed in recent years, but the decision regarding the gas plan may bring us back to the bad days of judicial imperialism that were created by Aharon Barak. It's unfortunate since Naor, as a judge, has led a sane, serious and restrained way of thinking.


In principle, there is no guarantee that judges make better decisions than politicians. One of the worst decisions the US Supreme Court made was in the case of Dred Scott, a former slave who was eligible to become a free man in accordance with the legislation of Congress. The court overturned the law and ruled that a black person is in fact an object.


Abraham Lincoln said at the time that "if government policy is irrevocably fixed by judges, people will cease to rule themselves. That court decision was one of the causes of the Civil War .


Judges appetites grew early last century, when the US Supreme Court abolished, for example, the law limiting the hours of work in bakeries, and a series of economic laws aimed at improving the economy and workers' rights. The president at the time, Roosevelt made outright threats. They had an effect. The judges began to restrain themselves.


The common assumption, that judges are better than politicians, has not received serious support in the history of democratic states, but lawyers continue to spread the legend. This is convenient for them. Sometimes it is just another means used buy the old elite to retain their power. Sometimes, just sometimes, it is not a mechanism for strengthening democracy but rather a mechanism to circumvent democracy.


Miriam Naor condemned the criticism of the court without referring to the crux of the issue and thus joined the mindset that all criticism is an attack on democracy. Rather than discussing specific allegations of the left, there are those who prefer to say "traitors," and instead of discussing other complaints of right , the response is "fascist." This is not the way to hold a public debate. That is how we cast it aside, and castrate it.


In most civilized countries, perhaps all of them, an issue such as the gas plan would never have gotten to the Supreme Court. The High Court's decision does not make Israel into more civilized or more lawful country. On the contrary, Israel is becoming a less civilized country. In the words of the late Justice Menachem Elon, there is a difference between the rule of law and the rule of judges. We did not get the rule of law. We received another completely unnecessary instance of the rule of judges.









פרסום ראשון: 04.04.16, 23:25
 new comment
See all talkbacks "Why are they afraid of criticism?"
This will delete your current comment