The constitutional revolution wasn’t Aharon Barak’s
In the present bitter struggle to maintain the independence of the judiciary in Israel, those who favor the government’s proposals make many claims that are false and misleading. Two such claims are that Justice Aharon Barak effected a “constitutional revolution,” and that the older generation of judges, such as Justice Moshe Landau, refrained from making “value judgments” and were mere legal technicians who simply applied the letter of Knesset statutes.
Let us start with the first claim. In a full-page petition published in Ha’aretz on Friday March 10, 2023, a list of professors from various disciplines claimed that they objected to the “constitutional revolution of Aharon Barak” and supported the proposals of the present government “to restore the balance between the branches of government.” The petition did not list the spheres of expertise of the professors, but a perusal of the list shows that very few of them have legal training. When reading the petition one could not but wonder how many of the signatories have actually read the judgments and other writings of Justice Barak. If they had, perhaps they would have known that when Justice Barak referred to the “constitutional revolution” he was referring to the revolution that the Knesset effected when it enacted the Basic Law: Human Dignity and Liberty.
What was the “constitutional revolution?” Very early on in its jurisprudence, in fact long before people had heard the name Aharon Barak, the judges on the Supreme Court created what may be called a “judicial bill of rights.” Yes, surprising as it may seem to those who swallow the shallow demagoguery of members of Forum Kohelet and the present coalition, the justices of the first generation on the Court were not robots who did not rule on issues of “values.” They were committed to the democratic nature of the state, and to the idea that in such a state basic civil liberties are protected, even though they are not enshrined in a formal constitution.
In 1953, Justice Shimon Agranat wrote the famous Kol Ha’am judgment, regarded by many scholars as the most important judgment in the history of Israeli constitutional law. In that judgment, Justice Agranat held that as a democratic country, fundamental rights connected to the democratic process, first and foremost among which is freedom of expression, are protected principles in Israeli law. Hence all legislation must be interpreted so as to give effect to these principles.
In that judgment, Justice Agranat revoked the decision of the minister of interior to suspend publication of two newspapers of the communist party on the grounds that matters published therein “were likely to endanger the public peace.” He held that the minister could only decide that a publication was “likely” to endanger the public peace if there was a high probability that it would do so, and that this was not the case in the matter before him. The government of the time did not ask who gave the non-elected judges the right to question the decision of the minister of interior.
In 1992 the Knesset enacted the Basic Law: Human Dignity and Liberty. This Basic Law protects fundamental rights – human dignity, the right to life and bodily integrity, property, individual liberty, the right to enter and leave the country and privacy. Nothing new in that: all these rights were already protected under the Court’s jurisprudence. What was new was the limitations clause in section 8 of the Basic Law. This section provides:
Rights under this Basic Law may not be violated save by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required, or on the basis of a law, as aforementioned, by force of an explicit authorization therein.
Add to this section 11 of the Basic Law that provides that all government authorities are bound to respect the rights under this Basic Law and you have the “constitutional revolution” to which Justice Barak referred. The meaning of these clauses is as clear as could be: the Knesset (definitely one of the government authorities) may not violate a protected right unless the conditions laid down in article 8 are met. Yes, it was the Knesset itself that held that a law violating a basic right would not be valid unless it met the conditions in section 8. That this was what the Knesset indeed intended becomes even clearer when one considers section 10. This section provides that the Basic Law does not affect the validity of law that existed prior to enactment of the Basic Law. The implication is self-evident: the Basic Law does not affect the validity of prior law: it may well affect the validity of subsequent law.
The argument of Forum Kohelet and Minister of Justice Levin is that the law does not expressly give the Court the power to declare that a law of the Knesset is invalid. This is indeed true. But was such an expression of power required? In order to answer this question let me put a question to the reader.
Imagine you are a judge in a case. The argument revolves around a law enacted after 1992 that expropriates the property of the defendants. The defendants argue that the said law violates their right to property, but that it does not meet the conditions of section 8 of the Basic Law: Human Dignity and Liberty. Thus, according to section 8, their right to property must prevail. What are you supposed to do? The argument raises a clear legal question, and a judge must decide every legal question that is relevant in ruling in the specific case. You have clear jurisdiction to decide the case. May you decide it without ruling on a highly relevant argument of one of the litigants? If you do so, are you not the one violating your judicial authority and ignoring an express law of the Knesset? You could, of course, decide that the Knesset did not have the competence to enact the limitations clause. But then, who would be the revolutionary judge: the one who respected the Knesset law, or the one who chose to ignore it?
In other words, in laying down limitations on future legislation, the Knesset necessarily left it to the courts to decide whether such legislation meets these limitations. Any other interpretation renders the Basic Law enacted by the Knesset meaningless.
The present opponents of the Court constantly cite Justice Landau as their example of the ideal “conservative judge.” It is indeed true that there were differences in the judicial philosophies of Justices Landau and Barak. Maybe Justice Landau was a conservative judge, although I am not at all sure how one assesses that. What is clear – as clear can be – is that Justice Landau was not a judge who was devoid of any ideology or values and who simply bowed to those of the politicians.
The truth is that there are few judges who made a greater contribution to the development of a jurisprudence protective of human rights than Justice Landau. He was the judge who ruled that the principle of free speech put forward by Justice Agranat in the Kol Ha’am case, refers not only to interpretation of legislation; it has to be taken into account in all use of administrative discretion. Thus, the Film Censorship Board may not disallow a film unless there are grounds for holding that there was a strong probability that showing the film would endanger public order.
As Justice Landau said, ״a government that assumes the power to decide what the citizen may know will eventually determine what the citizen should think; and there is no greater danger than that to a real democracy that is not ‘directed’ from above.” Justice Landau was also on the bench in the major case in which the Court held that the police may not refuse a permit for a demonstration unless there were a real probability of a danger to public order.
Justice Landau wrote the judgment in the famous Elon Moreh case. In that case, he rejected the government’s argument that since establishing settlements in the occupied territories was a political decision, the Court should refrain from examining the legality of taking the private land of an individual for that purpose. He also rejected Gush Emunim’s argument that their religious belief in settlement of Eretz Yisrael justifies grabbing the land of a private individual for that purpose. Furthermore, Justice Landau also ruled that a law giving public election funding only to existing parties and not to new lists violated the principle of equality in section 4 of the Basic Law; the Knesset. As the funding law had not been enacted with the majority of 61 MK’s required to change section 4, the law could not be implemented. Yes, the “conservative” Justice Landau was the first judge on the Court to invalidate Knesset legislation on the grounds that it was incompatible with an entrenched clause in a Basic Law.
While the judges of the first generation, to whom Justice Landau belonged, developed a jurisprudence of human rights they did indeed stop short of judicial review of legislation. The only exception was the case of legislation that was incompatible with an entrenched clause in a Basic Law that had not been enacted with the required special majority. Their reluctance to entertain judicial review of legislation was not that surprising. These judges had all received their legal education in the pre-WWII days when judicial review of legislation was not accepted in the vast majority of democratic countries.
By the time these judges retired and were replaced by a new generation of judges, the realization that there should be judicial restraints on the legislative body was becoming much more widely accepted and was part of the legal regime in most western democracies. The countries in Western Europe went even further: they adopted the European Convention on Fundamental Rights and Freedoms and accepted the jurisdiction of the European Court of Human Rights to rule on petitions claiming that they had violated the rights of individuals. Hence, when in the famous Mizrahi Bank case in 1995, the judges of the Israel Supreme Court decided that they could review whether legislation is compatible with a Basic law, judicial review of legislation was not the exception: it had almost become the rule.
So where was Justice Barak’s constitutional revolution? Justice Landau had already decided that a law that did not meet the demands of a Basic Law could be struck down by the Court. True in that case the demand was for a special majority. But is there a principled distinction between the demand for a special majority and the demand that the challenged law meets the substantive conditions required by the Basic Law? Did Justice Landau not make a value judgment in deciding that a law discriminating between new and old party lists violates the principle of equal elections? Why should the Court have refrained from making similar “value judgments” in deciding whether legislation is compatible with the substantive demands of a Basic Law?
It is quite possible and reasonable to criticize judgments of the Supreme Court (or any other court, for that matter). I myself have done so frequently. It is quite another thing to delegitimize the Court, and that on the basis of demagogic arguments that mispresent the development of its jurisprudence. We should be proud that we do not have robots in our judiciary, but rather independent judges who make value judgments and were never afraid to hold the government to account. Giving politicians the power to appoint judges whom they consider supportive of their political views will place a huge cloud over the independence of the judges and undermine the Court’s credibility in the eyes of people here and abroad.