Barak, Dershowitz Come Out Against Judicial Reforms

By Yisrael Price

YERUSHALAYIM — Former High Court president Aharon Barak, the architect of the policy of judicial activism now being threatened with dismantlement by the Netanyahu government, over the weekend issued dire predictions if the plans are not stopped.

In multiple interviews with Israeli media, Barak implored Justice Minister Yariv Levin to abandon his proposed sweeping reforms of the judiciary, which he said would give unchecked power to the politicians and leave the citizenry with no one to defend their rights.

Barak said he felt an obligation to warn the public that “the rights of everybody — Jew, Arab, chareidi, secular — are in grave danger.” If Levin’s proposals are fully implemented, “nobody will protect them” from the political majority of the day, since the Knesset is powerless to resist a majority coalition, and Israel has no constitution, no Bill of Rights, and no second House.

“Your right to dignity, to freedom, to life,” he told Israelis, “will be gravely harmed — and there will no court to turn to.”

Dramatizing his opposition to Levin’s proposals, Barak said that “if putting me to death would put an end to this drastic shake-up, I’d be prepared to go before a firing squad.”

In rebuttal to Barak’s statements, Levin expressed “respect” for Barak, but said that the retired court president “does not understand the essence of democracy,” and dismissed as “time-wasting” the suggestion of establishing a committee with Barak to formulate a compromise.

Barak’s approach, Levin asserted, “fundamentally contradicted democracy.” As things stand, “all power rests with the judges, and they decide what’s proportionate and reasonable. That’s not democratic.”

Under Barak’s leadership, the High Court adopted the principle of “judicial activism,” by which it justified intervention in many issues previously regarded as the province of the legislative and executive branches of government. The Israeli right wing has long decried the policy, which they say has enabled secular, left-wing judges to impose their worldview on the majority.

The proposals include empowering the Knesset to override the High Court with a simple majority of 61 when the latter strikes down its legislation, expanding the judges selection committee to include more members appointed by elected officials thereby diluting the judiciary’s say, and abolishing “reasonableness” as a legal test, such as in the current case of the appointment of Shas leader Rabbi Aryeh Deri as minister of interior and health (the attorney general argued last week that it was “unreasonable” due to his past convictions and should be annulled).

Barak characterized reasonableness as “a teaspoon of death” for the Israeli legal system. “‘Reasonableness’ is taught in the law schools, where [Levin] studied. I didn’t invent the concept of reasonableness,” he said.

Meanwhile, U.S. lawyer Alan Dershowitz, long a staunch defender of Israel’s policies on the international stage, said Sunday that he cannot defend the proposed judicial reforms.

Dershowitz said the reforms pose a threat to civil liberties and minority rights in Israel.

“If I were in Israel I would be joining the protests,” Dershowitz told Israeli Army Radio, referring to a protest in Tel Aviv that drew thousands.

“It will make it much more difficult for people like me who try to defend Israel in the international court of public opinion to defend them effectively,” he said. “It would be a tragedy to see the Court weakened.”

At a meeting of his Cabinet later on Sunday, Prime Minister Binyamin Netanyahu defended the reforms, and said that any change will be carried out cautiously.

“The claim that this reform is the end of democracy is absolutely baseless,” he said.

The director of International Law at the Yerushalayim-based Kohelet Policy Forum, Professor Eugene Kontorovich, rejected Dershowitz’s position.

“Professor Dershowitz is wrong about the impact of Israel’s proposed judicial reforms on international investigations. Israel’s assertive judiciary did not stop the ICJ from condemning it in a 2004 decision. The supposed international respect for the Court has done nothing to stop ICJ from illegally and absurdly recognizing a “State of Palestine” in all of the West Bank, including in Jerusalem,” said Professor Kontorovich.

“Nothing short of unilateral, complete Israeli withdrawal from all these territories would ward off further hostile action from these hostile, politicized bodies. It is sad that Dershowitz is choosing to weaponize these biased bodies to promote one side in a domestic Israeli legally argument.”