1.
"The light of the eyes rejoiceth the heart" (Book of Proverbs 15:30). The 18th century biblical commentator David Altshuler of Prague, explained in his famous books of commentaries known collectively as the Metzudot that the proverb refers to the enlightenment of the eyes when we clear an issue of doubt. "There is no greater joy than removing doubt," he wrote. The same can be said of the debate that has heated up in recent weeks since Justice Minister Yariv Levin presented his judicial reform plan as the die has now been cast and the veils have been lifted.
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In a fiery speech, Supreme Court president Esther Hayut spoke out against the reform and for all intents and purposes warned the government against passing the legislation that would enact the reform – and this before such legislation had been enacted. If we distinguish between the speech and the speaker, we will see that it could have been considered a speech by a member of the Opposition. And that is what was new about what Hayut said, not the content of the speech which was just another display of feigned innocence of someone who does not live among the people, but within the compound of imagined reasonability that they have decided upon for us.
From this perspective, Levin's response to the Supreme Court president was far more original because for the first time, all the cards were laid out on the table. Levin spoke for a huge public who for years have looked on and watched as the arena where political battles are decided moved from the legislature to the Supreme Court. The latter expanded the right of standing [whether the court should decide on a particular issue or dispute] and gave it to all and sundry, regardless of whether a particular person or body has been directly affected by the government or its laws ("the whole earth is full of law").
2.
The public debate is taking place in fascinating proximity to the Torah portions in the Book of Exodus. Shortly before the Children of Israel leave Egypt, they must first be awakened. Moses explains that it is not natural for them to be slaves, that once they were free, and they deserve the right to decide on their future. The Israeli public was dozing when Aharon Barak executed his constitutional revolution and strengthened the Supreme Court at the expense of weakening the Knesset and the government.
The trial of Prime Minister Benjamin Netanyahu and the scandalous, almost daily revelations about the bankruptcy of the prosecution and the police, have led a large section of the public that usually takes little interest in the relationship between the judicial system and the government to suddenly address the issue. Today, the public understands that the boundaries of the social contract between it and the representatives of the rule of law and civil rights have been crossed.
3.
Groups of exiles from around the world gather to create a just society. How should they decide what principles of justice and morality are common to them all? The American legal and political philosopher John Rawls coined the term "veil of ignorance" – a thought experiment whereby no one knows who they are, what their class and privilege are, so that they are totally impartial and are able to reach a decision on the nature of society and justice in a way as free as possible from any cognitive bias. Not knowing who they are, they do not know how their decisions will impact their social standing once the veil is lifted. Rawls believed that in this way it would be possible to determine a more just distribution of resources and a fairer society when it comes to rights and liberties.
This, it seems to me, is the dividing line between the worldviews of Hayut and Levin. Hayut believes that we still live behind the veil of ignorance; in other words, the judges rule from a place free from prior rulings and worldviews, and in particular free from the influence of political perspectives. While Hayut admits that values play their part in court rulings, she does not explain how she manages to remain detached from existing worldviews when making decisions on matters that are not purely legal.
4.
In the High Court ruling on family reunification (2006) Hayut stated: "The armed struggle conducted by the terrorist organizations ... necessitates proper preparation... the legislation of laws that provide a response to security needs... that is what the Citizenship Law seeks to achieve." Immediately however she adds the caveat: "There is a need for further examination of whether the violation of constitutional rights to equality and family life given to Arab citizens... caused as a result of the restrictions and prohibitions... in the Citizenship Law, meets the requirement of proportionality" And who determines what constitutes proportionality? It is clear that this is related to the worldview of the judge. The question becomes all the more relevant when it comes to controversial questions of values.
Hayut continues: "The horror of terrorism, like any horror, can be a dangerous guide for a legislator wishing to deal with the causes of terror. It could lead a democracy to exceed its boundaries and be carried away and rule on 'wide shoulders' for its security needs and cause inappropriate and disproportional damage to human rights... we must not say 'security at any price.' We must pay attention to the price we will pay as a society in the long term if the Citizenship Law with its sweeping prohibitions continues to find its way into our statutes."
That is not a ruling, that is a worldview. Protecting democracy, in the way Hayut sees it, forces us to give up a measure of security for our citizens and to risk terrorist attacks. What is the correct measure of the proportionality that has been mentioned as a legal tool for the Judge? Hayut knows the answer. That is why she disqualified the Citizenship Law and allowed thousands of Palestinians into Israel within the framework of "family reunification." Fortunately, a majority of judges, (six against five!) believed otherwise. But it is hard not to see how the court may annul the Law of Return on the grounds of inequality and "harm to democracy" and "the price we will pay as a society in the long term."
This ruling was one of the catalysts to the Basic Law: Israel as the Nation State of the Jewish People. Until then, the judges had no legal tools other than security justifications in order to prohibit the entry of residents of a hostile area in military conflict with Israel. The Nation-State Law enables the courts to prohibit Palestinians from entering Israel in order to preserve Israel as a Jewish state. But since Aharon Barak decided to turn the Basic Laws into the foundation of a constitution, and used them to disqualify regular laws, the "barbarians" learned the methodology and legislated a Basic Law that preserves Israel as a Jewish state.
The court itself works on the basis of a Basic Law and as such it cannot undermine Basic Laws that stand above it. But just as Barak decided to strike down regular laws without having authority in law to do so, since the legislation of the Nation-State Law, there has been a debate on the possibility of disqualifying Basic Laws in the name of the "principles ofthe (democratic) system," the Declaration of Independence and other excuses aimed at giving the court the power to do what no other court in the world can do.
5.
Contrary to Hayut, Justice Minister Levin sees what most of us see: the veil of ignorance has been lifted and the court indeed rules on considerations of values in line with the worldviews of its judges. Do we not already know how the court will rule on matters of security, religion and state, immigration, and so forth?
Hayut argues that Levin's reform will harm civil rights. Absolutely not! The reform does not pertain to the ability of the courts to rule on most issues, but only on those that are not legal but political; in other words, those that are a matter of public debate where the decision should be given to the people, namely its representatives in the Knesset.
In the name of which utopian truth have our elected representatives had their ability to decide taken out of their hands? What philosopher's stone does Esther Hayut hold, that makes her preferable to anyone else when deciding on moral considerations?
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