The Role of a Supreme Court in
a Democracy and the Fight against Terrorism-I
by Justice Aharon Barak, ISRAEL
I see my role as a judge of a Supreme
Court in a democracy as that of protecting the constitution and democracy. We cannot take
the continued existence of a democracy for granted. This is certainly the case for new
democracies, but it is also true of the old and well-established ones. The approach that
'it cannot happen to us' can no longer be accepted. Anything can happen. If democracy was
perverted and destroyed in the Germany of Kant, Beethoven and Goethe, it can happen
anywhere. If we do not protect democracy, democracy will not protect us. I do not know if
the Supreme Court judges in Germany could have prevented Hitler from coming to power in
the 1930s. But I do know that one of the lessons of the Holocaust and of the Second World
War is the need to have democratic constitutions and ensure that they are put into effect
by Supreme Court judges whose main task is to protect democracy. It was this awareness, in
the post-World War Two era, which helped disseminate the idea of judicial review of
legislative action and make human rights central. It led to the recognition of defensive
democracy and even militant democracy. And it shaped my perspective that the main role of
the Supreme Court judge in a democracy is to maintain and protect the constitution and
democracy.
Everyone agrees that democracy means the rule
of the people, acting through their representatives in the legislature. It is therefore
essential to democracy that free elections are held periodically for the election of
representatives on the basis of the political program proposed by them, and that they are
accountable to the people, who can periodically replace them; hence the connection between
democracy and legislative supremacy. However, real or substantive democracy, as opposed to
merely formal democracy, is not satisfied by the presence of these conditions. Democracy
has its own internal morality, based on the dignity and equality of all human beings.
Thus, in addition to formal requirements, there must also be substantive requirements.
These are reflected in the supremacy of certain underlying values and principles based on
human dignity, equality, and tolerance. There is no (real) democracy without recognition
of values and principles such as morality and justice. Above all, democracy cannot exist
without the protection of individual human rights that the majority cannot take away by
force of its numerical superiority. Real democracy is not just the law of rules and
legislative supremacy. Democracy is a multi-dimensional concept. It requires recognition
of the power of the majority and limitations on the power of the majority. It is based on
legislative supremacy and the supremacy of values, principles and human rights. When there
is internal conflict, the formal and substantive elements of democracy must be balanced,
to protect the essence of each of the aspects of democracy. In this balance, limitations
are placed both on legislative supremacy and on the supremacy of human rights.
With that approach to my role as a judge I
will turn to the role a Supreme Court should play when a democracy launches its war on
terror. In doing so, I will refer to the Israeli Supreme Court's experience in dealing
with that problem. My aim is not to discuss specific cases or specific results. My aim is
to lay down a way of thinking about the judicial role in time of terror.
The Supreme Court and the Problem of
Terrorism
1. Terrorism and democracy
Terrorism plagues many countries. The United
States realized its devastating power on 11th September 2001. Other countries such as
Israel have suffered from terrorism for a long time. While terrorism poses difficult
questions for every country, it poses especially difficult questions for democracies,
since not every effective means can be used. I discussed this in one case, in which the
Supreme Court of Israel held that violence (torture) in the interrogation of a suspected
terrorist is not permitted, even if using violence may save human life, by preventing
impending terrorist acts:
"We are aware that this decision does
not ease dealing with that reality. This is the destiny of democracy, as not all means are
acceptable to it, and not all practices employed by its enemies are open to it. Although a
democracy must often fight with one hand tied behind its back, it nonetheless has the
upper hand. Preserving the Rule of Law and recognition of an individual's liberty
constitutes an important component in its understanding of security. At the end of the
day, they strengthen its spirit and its strength and allow it to overcome its
difficulties."
Terrorism creates much tension between the
components of democracy. One pillar of democracy - the rule of the people through its
elected representatives - may encourage taking all steps effective in fighting terrorism,
even if their impact on human rights is harmful. The other pillar of democracy - human
rights - may encourage protecting the rights of every individual, including the terrorist,
even at the cost of undermining the fight against terrorism. Struggling with this tension
is primarily the task of the legislature and the executive, which are accountable to the
people. But the legislature and the executive must act within the Constitutional and
legislative scheme - a scheme which is subject to judicial review.
We judges in modem democracies have a major
role to play in protecting democracy. We should protect it both from terrorism and from
the means that the state wants to use to fight terrorism. Judges are, of course, tested
daily in their protection of democracy, but judges meet their supreme test when they face
situations of war and terrorism. The protection of human rights of every individual is a
duty much more formidable in situations of war on terrorism than in times of peace and
security. If we fail in our role in times of war and terrorism, we will be unable to
fulfill our role in times of peace and tranquility. It is a myth to think that it is
possible to maintain a sharp distinction between the status of human rights during a
period of war and the status of human rights during a period of peace. It is
self-deception to believe that we can limit our judicial rulings so that they will be
valid only during wartime, and that we can decide that things will change in peace time.
The line between war and peace is thin - what one person calls peace, another calls war.
In any case, it is impossible to maintain this distinction over the long-term, We should
assume that whatever we decide when terror is threatening our security will linger many
years after the terror is over. Indeed, we judges must act with coherence and consistency.
A wrong decision in a time of war and terrorism plots a point that will cause the judicial
graph to deviate after the crisis passes.
Moreover, democracy ensures us, as judges,
independence. It strengthens us - because of our political non-accountability - against
the fluctuations in public opinion. The real test of this independence comes in situations
of war and terrorism. The significance of our non -accountability becomes clear in these
situations when the opinion of most of the public is unanimous. Precisely in these times
of war and terrorism, we judges must hold fast to fundamental principles and values; we
must embrace our supreme responsibility to protect democracy and the Constitution.
Admittedly, the struggle against terrorism
turns our democracy into a 'defensive democracy' or even a 'fighting democracy'.
Nonetheless, this defence and this fight must not deprive our regime of its democratic
character. Defensive democracy - yes; uncontrolled democracy - no. Judges in the highest
court of the modern democracy should act in this spirit.
2. In battle, the laws are not silent
There is a well-known saying that when the
cannons speak, the Muses are silent. A similar idea was expressed by Cicero when he said
that inter arma silent leges (in battle, the laws are silent). These statements are
regrettable. I hope they do not reflect the way things are. I am convinced they do not
reflect the way things should be. Every battle a country wages - against terrorism or
against any other enemy - must be carried out in accordance with rules and laws. On the
international plain, these rules are of international law; on the domestic plain, they are
the rules of domestic law. There is always law according to which the state must act.
There are no black holes where there is no law. And the law needs Muses. We need the Muses
most when the cannons speak. We need laws most in times of war. During the Gulf War, Iraq
fired missiles at Israel. Israel feared chemical and biological warfare as well, so the
government distributed gas masks. A suit was brought against the military commander in
which the petitioner argued that the commander had distributed gas masks unequally in the
West Bank. We accepted the petitioner's argument. In my opinion, I wrote:
"When the cannons speak, the Muses are
silent. But even when the cannons speak, the military commander must uphold the law. The
power of society to stand up against its enemies is based on the recognition that it is
fighting for values that deserve protection. The rule of law is one of these values."
Indeed, the struggle against terrorism is not
conducted 'outside' the law but 'within' the law using tools that the law makes available
to a democratic state. Terrorism does not justify the neglect of accepted legal norms.
This is how we distinguish ourselves from the terrorists. They act against the law, by
violating and trampling it. In its war against terrorism a democracy acts within the
framework of the law and according to the law.
Indeed, the war against terrorism is a war of
a law abiding nation and law abiding citizens against law breakers. It is, therefore, not
merely a war of the state against its enemies; it is also a war of the law against its
enemies.
(To be concluded)
Justice Aharon Barak is President of the
Supreme Court of Israel. This article was published in Justice No. 37 Winter 2003, a
publication of the International Association of Jewish Lawyers and Jurists. Embassy of
ISRAEL
Korea: Industrial Output Rose
for 8th Month in Jan.
Korea's industrial output rose for the eighth month in
January, but figures again highlighted the deepening contrast between fragile internal
demand and brisk external sales.
The data, released by the National Statistical Office, show
that industrial production increased a preliminary 4.8 percent in January from a year
earlier, after gaining 10 percent in December. If seasonally adjusted, it climbed 1.1
percent on-month.
"Driven by strong exports, production increased but
consumption and business investment remained in a slump," the statistics bureau said
in a statement.
Wholesale and retail sales, a measure of consumer spending,
shrank 2.5 percent on-year, accelerating from December's 1.2 percent fall and marking the
11th monthly contraction.
Corporate investment in facilities and equipment also sank
3.1 percent from a year before, versus a 1.6 percent drop in December, marking a seventh
straight decline.
"The biggest problem is that our industry is counting
too much on a few segments, such as semiconductors, whose power of creating jobs is weaker
than others, thus contributing less to improving people's sentiment toward the
economy," said Kim Bum-sik, a senior researcher at Samsung Economic Research
Institute.
Backing the view, January statistics show that excluding the
semiconductors sector, in which production soared 53.8 percent on-year, overall industrial
output fell 2.1 percent from a year earlier.
January had three fewer working days this year than in 2003
as the three-day Lunar New Year holiday fell during the month. The reduced working hours,
however, were well compensated for by stronger sales abroad, particularly in thriving
China, analysts said.
According to the Ministry of Commerce, Industry and Energy,
exports surged 33.2 percent in January on-year, the fastest rise in 35 months, leaving the
nation in a trade surplus of $3 billion. Of them, shipments to China, Korea's No. 1 export
market followed by the United States and Japan, skyrocketed about 58 percent. China's
figures reveal that retail sales in the second-largest economy in Asia increased at the
greatest clip in two and a half years in December.
Korea, amid slight signs of recovering domestic demand, has
relied heavily on exports to prop up its flagging economy, whose growth halved to around 3
percent last year.
This industrial data proved that Korean carmakers were one of
the biggest victims of crumbling domestic sales.
Automobile production contracted 9.2 percent in January from
a year earlier, switching from a 13.7 percent rise in December and the full-year increase
of 6.5 percent in 2003. "The collapse of local demand was the main reason behind the
downswing," Kim explained.
Other industrial figures paint quite a rosy picture for
future economic conditions. The facility utilization rate reached a three-month high of
80.5 percent, while factory inventories fell 1.7 percent from December, marking the
biggest drop since September 2002.
The coincident composite index, which reflects present
economic conditions, rose for a sixth month, gaining 0.2 point to 99.7.
By Kim Ji-ho
2004.03.20 |
