Canadian Lawyer

16 S E P T E M B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m Bibi and his supporters rail against Israeli judicial activism that they say sub- verts parliamentary sovereignty. In 1992, the Knesset, Israel's parliament, passed a statute called Basic Law: Human Dig- nity and Liberty. It has been used by the Israeli Supreme Court, and particularly by Aharon Barak, chief justice from 1995 to 2006, to enhance the constitutional role of the Israeli judiciary and strike down legislation the court didn't like. Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Cir- cuit, has written, "What Barak created out of whole cloth was a degree of judi- cial power undreamed of even by our most aggressive Supreme Court justices." Barak, says Posner, took for granted that judges have inherent authority to override statutes (Israel does not have a written constitution explicitly giving the courts this power). Netanyahu doesn't like an assertive judiciary. He thinks it's undemocratic. The Economist wrote in May that Netanyahu "is preparing for an unprecedented fight to muzzle the court. The outcome of the contest — between politicians and judges, and between nationalist and universal values — could tear his government apart, and determine the future character of Israeli politics." Netanyahu has proposed two bills, one allowing the Knesset to override a court decision that strikes down legisla- tion, and the other changing the judicial selection process to provide for more political influence. Responding to The Economist's article, a Netanyahu spokes- man disingenuously described the Israeli prime minister as a "stalwart defender of the court." In the complicated coali- tion politics of Israel, the fate of Netan- yahu's proposed legislation is uncertain. Recently, there have been signs that Bibi may be backing away from his legislative attack on Israel's judges. What about the other member of the prime ministerial odd couple? As we all know, Harper has issues with the Supreme Court of Canada. The court has not always been compliant with his wishes. He has gone as far as pub- licly criticizing Chief Justice Beverley McLachlin. Of course, our PM is in a quite different position than Netanyahu. For one thing, he is formally constrained in what he can do about Canada's highest tribunal. The current view seems to be that the Supreme Court Act is part of the Canadian Constitution, subject to the very difficult constitutional amendment T O P C O U RT TA L E S O P I N I O N @philipslayton SCOTT PAGE In a democracy, there is always tension between elected representatives and unelected judges, each checking over their shoulder for the other. It's not a bad thing. By Philip Slayton A most tense relationship tephen Harper and Benjamin Netanyahu, the prime minister of Israel, are friends and allies. Buddies, you might say. "Through fire and water, Canada will stand with you," Harper told the Israeli parliament during his 2014 visit to Israel. During that visit, a local newspaper had a giant picture of Harper on its front page with the caption "Our Man In North America." Stephen and Bibi support and learn from each other. They're brothers in arms. They're similar in many respects. (For one thing, they're both inclined to be bullies.) And they even resemble each other physically. Sepa- rated at birth? Harper and Netanyahu share at least one common problem: each has a pesky supreme court. S

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