While we wait anxiously for the high court to decide whether the ‘reasonableness’ clause is legal or not, knowing that whatever is decided there will be blood, the rest of my life doesn’t appear to be reasonable either. After a long pulgrimage to a learned specialist who speculated that the extreme and agressive treatment I’ve been getting for the past three years may not have been a solution, but may well be part of the problem, I was sent on a search for a specific radiation stress test and only with Ezi’s help, found it. Then made an appointment for thursday, and was confirmed for another test. Now I can’t find out what happened – offices are closed. It will be hard to plan the next few days …
So much for the personal – now for the general absurdity. Dear Frances Raday wrote an opinion in the paper today:
Israel’s Supreme Court convened Tuesday to begin hearing an historic case asking it to nullify a law so contentious that it has plunged the country into crisis. The law abolishes the Court’s judicial review power over decisions of the Cabinet, prime minister and other ministers on grounds of unreasonableness.
The law, the first of the far-right government’s highly controversial judicial overhaul package of proposed laws aiming to weaken the court, has been the subject of much public and professional discussion, in which the claim of the government that judicial review on grounds of what is termed “reasonableness” does not apply in other democratic legal systems has been roundly refuted.
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The law, if left in force, would severely curtail the power of the courts to review arbitrary government decisions on appointments and administrative policy. It would leave the government free to make corrupt decisions with impunity.
It is hard to conceive of any government which was committed to fair and ethical governance even making such a proposal to remove judicial review of its decisions on grounds of unreasonableness. But for the current government this is par for the course.
Furthermore, there is direct political expediency in its doing so. Nullifying the court’s power to strike down what it determines to be “unreasonable” has been used before by the court to block government decisions or appointments they view as corrupt or otherwise extremely unwise. This was the standard used by the court, for example, to bar the appointment of Netanyahu’s coalition partner, Arye Deri, to a ministerial post on grounds of his criminal convictions and his promise during sentencing in a criminal court that he intended to retire from public life.
Beyond the substance of this particular law itself, the hearing is crucial as it’s the first in a series of judicial overhaul related laws at various stages of the legislative process, whose constitutionality has come up for review by the Supreme Court.
The president of the Supreme Court has created a historical precedent by including all 15 justices on the bench for this hearing. Prime Minister Benjamin Netanyahu has further accentuated the drama of the moment by intimating in a CNN interview that he might not abide by the decision of the court if it intervened to nullify the Law. The ambivalent statement of the Prime Minister suggests predictive contempt of court. Others in Netanyahu’s government, have been more blunt in their warnings, including Knesset Speaker Amir Ohana. He declared last week, “not every ruling by the Supreme Court must be honored.” Justice Minister Yariv Levin, the judicial overhaul’s architect, said the court “lacks all authority” to review the law.
The blatant threat by government not to abide by the decision of the Supreme Court would be far more serious than even contempt of court – an egregious act of governmental challenge to the judiciary as an independent branch of democratic governance.
The claim of the Israeli government that the Supreme Court cannot overrule laws which have been passed by the will of the people contradicts Israel’s commitment under its Declaration of Independence, its existing Basic Laws and under its international law obligations to respect and protect human rights.
This is a commitment which is not subject to the will of the majority but is, rather, a restriction on the power of the majority. Israel’s Knesset and government must themselves be restrained by this commitment, which is part and parcel of all democratic regimes and the implementation of which necessitates independent judicial review.
Furthermore, the claim by the government that there is no power of judicial review over legislation which is in the form of a basic law, as is this particular law, is without merit. The labelling of a law a “basic law” (a quasi-constitutional law with supra-legal status, designed to deal with the principle institutions of the state and guarantees of human rights) does not require any special procedure or any special majority in the Knesset and so could be manipulatively used by government as a tool to preempt judicial review.
This looming confrontation between government and the court goes far beyond possible contempt of court. It puts in question the very foundations of Israeli constitutional democracy. It has already been emphasized repeatedly by political and legal commentators that Israel has weak protection for its democracy, as the executive and parliament are under direct control of the governing coalition and hence the judiciary is the sole independent branch with the power to review governmental decisions. This makes Israeli democracy uniquely vulnerable.
The threatened defiance of the Supreme Court expressed by Netanyahu suggests that no means are inconceivable in his lust to secure for himself and his government absolute constitutional power.
The scenario which unfolds – should the Supreme Court declare the law on reasonableness nullified and should the government openly declare it will not abide by such a decision – is without precedent. A declaration of governmental defiance will, in itself, prompt conceptually a constitutional crisis. But it is not easy to predict the way in which the resulting constitutional crisis will unfold. The most likely development would be that the government would test the waters by taking a decision which would fall within previous Supreme Court’s decisions of what is considered “unreasonable” such as appointing Deri to a ministerial post.
This could be followed by a court decision determining the invalidity of the appointment. If the government then persisted in maintaining the appointment, this might become a basis for prosecution of responsible ministers for contempt of court. However, such a prosecution would be subject to claims of parliamentary immunity. And then it’s an open book as to which measures could be taken by various watchdog institutions of Israeli democracy.
What is clear is that should the government be allowed to openly defy the Supreme Court, the institutional basis of the Israeli constitution would be autocracy and not democracy.
Frances Raday is the president of the Concord Research Center for Integration of International Law in Israel, The Haim Striks School of Law, College of Management; Professor of Law, Emerita, Hebrew University; Honorary Professor, University College, London; and Special Rapporteur, UN Human Rights Council, Expert Group on Discrimination against Women.