Ehud Barak and the High Court of Justice

PRIME MINISTER BENJAMIN Netanyahu paid a very steep price to keep Ehud Barak’s rump Independence Party in the governing coalition. Even neophyte Einat Wilf, the lowest placed of its five Knesset Members, walked off with a committee chairmanship, while the other four received ministerial portfolios. Barak himself, of course, retains the second most important office in the government – the Defense Ministry.Netanyahu rejected the less expensive option of bringing in the hawkish National Union. Clearly, he felt that the Independence Party members were honest politicians as per the old American adage – that an honest politician is one who, once bought, remains bought – whereas the misnamed National Union may indeed be nationalist, but it is far from a union, more an unpredictable confederation of single-member vanity parties.With the exception of the Welfare Ministry, Netanyahu, by applying the principle of uti possidetis (retaining possession) that allows Independence to retain the portfolios previously lavished upon a 13- member Labor Knesset faction, also avoided intra-coalition wrangling about the redivision of the spoils.The question, however, is less about portfolios and more about policy. Do the same policy guidelines that preceded the Labor Party schism apply under the new circumstances? Unfortunately, the de facto freeze on building in Jewish communities beyond the 1949 armistice lines quietly imposed by the Defense Ministry remains in force, giving credence to the assumption that Barak is serving as Netanyahu’s lightning rod to deflect criticism from the prime minister’s nationalist political base.Massive building in Judea and Samaria could provide a corrective to the skyrocketing apartment prices in pre-1967 Israel, as well as strengthen Israel’s negotiation position and signal to the Palestinians that their delaying tactics will backfire.Nevertheless, some good might still come out of all this: The Labor Party schism, coupled with the recent vicissitudes in appointing a new IDF chief of staff, may prove a much needed game-changer in redressing the balance of power between the judiciary, the legislature and the executive.As a concession to Labor, the original coalition agreement between Labor and Likud stipulated that the status quo in the legal sphere would be maintained. This meant that the government would not be able to launch a counterattack against the unidirectional, ultra-liberal judicial activism of the Supreme Court masquerading as a “constitutional revolution.” As long as Barak was the chairman of a party still attempting to appeal to the Israeli left, this made sense. Ever since the end of Labor hegemony in 1977, the Israeli left has regarded the court as its firewall against policy changes by democratically-elected conservative governments, and as a tool for imposing the standards of what former chief justice Aharon Barak called the “enlightened public” on the unwashed majority.Questions that were once completely in the government’s or the Knesset’s purview are now second-guessed by the courts – not because of any illegality or conflict of interests that would have justified judicial intervention, but on the grounds of “plausibility” and “proportionality.”The courts, rather than professionals, define what is plausible and proportional from the route of Israel’s security fence to the amount that the government should invest in bomb shelters.Key appointments must be vetted by quasi-judicial committees and search teams. Recently, the appointment of Maj. Gen. Yoav Galant to the post of chief of staff was derailed because of real estate improprieties in the public domain since 2008.Galant’s appointment had already been passed by one committee and then fell victim to another quasi-judicial authority, the State Comptroller. The idea of appointing Deputy Chief of Staff Maj. Gen.Yair Naveh temporarily to the top post provoked a petition to the High Court of Justice alleging that he had committed war crimes and citing a disparaging off-the-cuff remark Naveh once made about the court. The High Court justices, while rejecting the petition outright, nevertheless expressed their displeasure over Naveh’s “lèse majesté.” As a result of the unlimited potential for legal wrangling exploited by interested parties, Israel confronted the serious possibility of a headless IDF at a moment of severe regional uncertainty. Each successive candidate ran a legal gauntlet and faced rejection for reasons that had nothing to do with his professional qualifications. This prompted calls for reassessment even among people who normally do not oppose the court’s ultraliberal animus. Among those arguing that judicial intrusion had gone too far was Israel Radio’s senior political analyst Yaron Dekel. Writing on Maariv’s NRG website, Dekel blamed a pusillanimous political class for allowing such judicial imperialism. As the politicians could not be expected to shed this cravenness, Dekel naively beseeched the court to perform an act of self-abnegation by unilaterally retreating to restore the balance. Ehud Barak, like former justice minister Daniel Friedman who led the fight-back against judicial imperialism in the Olmert government, has suffered from judicial high-handedness. Freed of his leftist moorings and cognizant of his diminished authority, Barak should optimally lead, or at least not obstruct, a movement to restore separation of powers. Contributing editor Amiel Ungar is a columnist for the Makor Rishon daily and the national religious monthly Nekuda.

Ehud Barak and the High Court of Justice

Ehud Barak, like former justice minister Daniel Friedman, has suffered from judicial high-handedness. Freed of his leftist moorings, Barak should optimally lead a movement to restore separation of powers.

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Ehud Barak and the High Court of Justice

Ehud Barak, like former justice minister Daniel Friedman, has suffered from judicial high-handedness. Freed of his leftist moorings, Barak should optimally lead a movement to restore separation of powers.

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