On the “overriding the courts” debate

As a Canadian sojourner in Israel, it may not be my “place” to get involved in the details of the Israeli debate over legislation intending to provide a parliamentary/Knesset override over judicial decisions striking down statutes.  But when has lack of “skin in the game” ever stopped any Jew from voicing an opinion?

What I will do, however, is limit these comments to the discussion about the proposed law, not the law itself.  Being Canadian as well as Jewish, I can (sometimes) exercise restraint.

I’m very troubled by the insistence of many (including Justice Abella of Canada) to rhetorically link judicial superiority over the Knesset with “democracy” – to suggest that permitting the Knesset to override the courts is a blow to “democracy”.  In reality, if we assume, for the sake of debate, that the Knesset expresses the will of the people, then we quickly see that the ability of the court to overrule legislation is quite the opposite of “democratic”.  Remember that these judges are (typically) older, conservatively educated, highly cerebral, financially secure people who are not beholden to anybody. They have security of tenure and, (I presume) a very good pension when they retire. They live in a professionally risk-free world.

As such, they can hardly be seen as typical of the electorate.  Indeed politicians have been accused of being completely out of touch with the world for much less.

More and more, we are seeing governmental policies and programmes described as responding to, or expressing, “populism”. This is a catch-phrase, I think, for describing that which is thought to be attractive only to the basest urges of people and not “the thing” for people like us.  I can very well understand the desire for an umpire, a big brother or some such to control “populism” in this sense. Such populism can so quickly become grossly abusive of minorities. We don’t have to play the Nazi-Germany card on this to prove it. Think of the Canadian and American internment of, and theft of property from, their Japanese citizens during WW2.  We certainly don’t want anything like that to happen again and, should the attempt be made, we’d love somebody or some body to say “Stop”.

But we need to be analytic and procedure-oriented, not results-oriented about this.  Judicial override of legislation is a revolutionary concept “invented” in the US and in the federal Dominions which arose out of British colonies.  In each of these examples, the federal nature of the country was premised on a division of powers.  There were some things which only the central government could do, some things which only the provinces/states could do.  Crossing the boundary meant that the act was “ultra vires” – beyond the power – and therefore null and void.

This division of powers necessitates an umpire to draw interpretive lines: e.g. in the Canadian context, what is “criminal law” (federal) v. “property and civil rights” (provincial) when it comes to e.g. driving, polluting, hate speech, etc. The courts always drew such lines e.g. “guilty” v. “not guilty”; “liable to pay damages” v. “not liable to pay damages”, so it was only a tiny step to say, “you’re not guilty because the law they are prosecuting you under should have been enacted by somebody else and therefore is no law at all”.

It is the addition of Bills/Charters of Rights that complicates the situation immensely.  This is because by specific intent these documents are intended to frustrate the desires of the majority as expressed by their elected representatives.  In Israel, the situation is arguably even more complicated as the Court here, so it appears to this outsider, takes jurisdiction over areas of political or defence-related activity on which, in Canada, the courts would refuse to adjudicate.

In any event, there is a tremendous inclination towards seeing a Bill/Charter of Rights as a “good thing”.  For example, I think nearly everybody now will recognize that an internment of citizens as were the Japanese during WW2 should not be repeated, and any attempt to do so should be frustrated somehow.  We think/assume that the Bill/Charter will prevent the government from doing this or something like it and therefor they are a “good thing” (even thought the US Bill of Rights existed at the time!).  But that is “results based” thinking and says nothing about the institution of judicial override of legislation.  And we must be careful about “results based” support for an institution as the results may not always be what we want.  For example, the passage of Roosevelt’s New Deal was significantly delayed and hampered by judicial rulings related to the division of powers.

The question I want to pose to Israel and Israelis is this:  Have you truly lost confidence in your democratic institutions and the quality of your elected representatives?  If so and if you want absolute judicial control, let’s be honest about it, you are not looking for more “democracy”, you are looking to appoint a benevolent despot in the form of the court:  Sure, the Knesset can still take care of the “minor” stuff of day to day management, but on the gut-wrenching issues, neither they nor “the people” whom they are said to represent, can be trusted.

There is no question: It makes sense to force a sober second thought re: controversial legislation.  But, even in respect of fundamentally important rights there may have to be an opportunity for legislative superiority.  This is fully recognized in Canada.  First, the rights are not absolute – they are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (which does NOT mean everybody has to agree!). Secondly, under s. 33 of the Canadian Charter of Rights and Freedoms rights generally considered as essential human rights can be overridden by legislation if certain hoops are jumped and repeated from time to time.

It appears to me that what is being discussed here, now, is being discussed as an “all or nothing” question and that much of the opposition to the proposed law is driven by a rejection of the policies and personalities of the present government.  This is potentially disastrous to one’s future stress level – what if the personnel and personalities of the court and government were to be reversed and the Knesset cannot overrule the court?  It can happen.  Despots who begin benevolently, can turn.  Power corrupts and there is no reason to deny that power can corrupt a group as much as an individual.

Finally, I want to quote a great American 20th century judge with a name the likes of which we simply don’t see any more: Justice Learned Hand. He said:

…a society so riven that the spirit of moderation is gone, no court can save; … a society where that spirit flourishes, no court need save; … in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.
“The Contribution of an Independent Judiciary to Civilization” (1942).

Where can the “spirit of moderation” come from? How can we foster it?  How can we protect ourselves and others from hatred, selfishness and venality?  THOSE are the questions which no court can answer.

Individual responsibility, careful thought prior to action, willingness to consider both “the other” as valuable and “the other’s” arguments as entitled to careful consideration, attempts to work for the long run, willingness to treat “the stranger” fairly, magnanimity, a willingness to consider compromise – all these and other characteristics are key.

And if you don’t believe that our democratic systems and, more importantly the electorate, are capable of this, then let’s, indeed, go the benevolent despot route.  In particular, I’m winding up my legal career, and in about a year or so, I should be free to take up the job. You’d pay me a whole lot less than a bunch of judges, and I can type my own decisions!