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Mounting criticism of bill to limit Supreme Court powers

Justice Minister Yaakov Neeman’s draft bill for the Basic Law: Legislation has prompted a lively debate for and against, mainly over the clause that would allow the Knesset to revive a law that the Supreme Court has ruled unconstitutional through a 65-member majority. On Tuesday, the new chief justice of the Supreme Court, Asher Grunis, delivered a sharp message against the bill, and openly criticized the Justice Minister for not consulting with the Court in drafting it. His reprimand was a strong statement for a judge who is considered to be conservative and skeptical of judicial activism.

One intelligent critique of the opposition to the bill was written in Haaretz by Yuval Elbashan, whose views I greatly respect for their nuance and depth, especially on matters of law and social justice. His accusation that the left unleashed a shallow, knee-jerk condemnation of the bill gave me pause, forcing me to reconsider whether my own reaction had been too reflexive:

 

…Even after four days of debate, the discussion is stuck in the same shallow water, with the same fear-mongering, end-of-days terminology, or, as one opinion maker told a radio interviewer, “If this bad law passes, we can shut down the rule of law.” Such a situation is not just ridiculous, it’s dangerous.

It’s dangerous because this bill is critically important, precisely for those who want to fortify Israeli democracy and the power of the Supreme Court. It’s dangerous because if this law is rejected, the delegitimization of the Supreme Court will continue…

 

But Elbashan’s subsequent description of the history of judicial activism makes the Court look like a rapacious Promethean figure who crudely grabbed the power of judicial review and has thus earned its punishment. Elbashan agreed that the 65 MKs needed to revive a law should be adjusted, but called this a “secondary discussion.”

I do agree with the logic of regularizing relations between the branches of power, which I also mentioned briefly in my first post – and Elbashan convinced me of the growing urgency to check the increasing public delegitimization of the Court. Zvi Bar’el of Haaretz agrees with that general point too. But Bar’el’s piece exposed the deeper principle of judicial review, and examined the signal that Neeman’s Basic Law would send to citizens and government authorities alike:

 

[Judicial review is a] defensive “safety belt”… based on an enlightened lawmaker’s understanding that he is capable of erring, of aspiring to tyranny or of abusing citizens. Therefore, it is best to have a policeman with a great deal of authority facing him; one who is able to stop him. Now, Justice Minister Yaakov Neeman is proposing to eliminate this safety device…in a country where many Knesset members view the High Court as an enemy, minorities as a fifth column, the left as homegrown terrorists and religion as the basis of patriotism [and a country that lacks a constitution, I might add – ds], it is not the legislature that needs strengthening but rather the court, which remains the last refuge of anyone who does not belong to the “mainstream.”

 

Bar’el also raises the troubling context that belies Neeman’s putatively earnest attempt to stabilize the functioning of democracy.

He points out that the Knesset was recently “insulted” when the Tal Law allowing the deferral of Haredi citizens from IDF service was revoked by the Court. And just a few weeks ago, the Court ruled against a deal that would allow the West Bank settlement of Migron (accused of being built on private land) to remain in place. The split-second response of right-wing MKs to the Migron ruling was to produce bills tailored exquisitely to the settlements they want to legalize. For months leading up to the Court ruling, these lawmakers had been practicing the refrain that the Court is trying to rule the country and take over the government. The bill for the “Basic Law: Legislation” miraculously appeared just a few weeks later.

But Bar’el’s strongest argument in my mind is that the Knesset already has the power, de facto, to overturn a Supreme Court ruling that a law contradicts the Basic Laws (the equivalent of ‘unconstitutional’ in Israel) – by voting out the Basic Law. This is the final evidence to me that the Justice Minister’s bill is a ruse. The clause is not actually needed – rather it is intended to slap down the Court and tell society that the legislature alone is the sovereign. It is intended to cement a self-destructive agenda of one government, by permanently weakening our system.

I am heartened that the new chief justice spoke out against the bill. His explicit critique was about the justice minister’s failure to consult with the Court, and the size of the Knesset majority that can overturn a Court ruling of unconstitutionality. But the message that this institution will not be bullied by the Knesset, nor enslaved to the political agenda of this coalition, and that its leader is independent-minded, is at least as important.

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    COMMENTS

    1. Gary

      Surely in the penultimate paragraph, you meant “Knesset” and not “Court”. Then it would read “But Bar’el’s strongest argument in my mind is that the Knesset already has the power, de facto, to…”

      Reply to Comment
    2. Gary

      Surely in the penultimate paragraph, you meant “Knesset” and not “Court”. Then it would read “But Bar’el’s strongest argument in my mind is that the Knesset already has the power, de facto, to…”

      Reply to Comment
    3. Indeed I did – thanks for pointing that out. Correction appended!

      Reply to Comment
    4. Piotr Berman

      “and religion as the basis of patriotism”.

      Perhaps it is the reverse. Public religion in Israel is effectively some mix of cult of the State and Military with an optional addition of Biblical justifications. Most of “secular” citizens accept it quite, well, religiously.

      Judaism in Israel is split into “Zionist Judaism” and non-Zionist, including outright anti-Zionist, and some “in between” flavors. But I would say that for the majority, patriotism is the basis for their religion and not the other way around. It is very instructive what happens when someone attempts to use Torah to make a moderate argument, say, in JPost. Derision is instant, and by reading the comments you can see how “patriotic pieces” are picked, and the inconvenient pieces dismissed.

      Another example was how the concept of “Tikkum Olam” was used by Doniel Hartman to justify the patriotic duty to commit (or support) “targetted assassinations”. It was extremely obvious that Hartman had his patriotic conclusion first and then sifted “Jewish tradition” to get some justification. In my opinion, this guy is not religious at all, and on intelectual level his effort was very shoddy: if you say that “A” is good, then it improves the world, so it is our duty to support “A”. An actual rabbi would at least try to find something in the lore that would resemble “A” before you proclaim that it is good. Which is of course possible, and Hartman simply did not bother.

      Reply to Comment
    5. Y.

      “But Elbashan’s subsequent description of the history of judicial activism makes the Court look like a rapacious Promethean figure who crudely grabbed the power of judicial review and has thus earned its punishment.”
      .
      But that exactly what happened. If anything, this is a far too charitable description of the Court’s activities. In the same manner, Israel’s contract law (Appropim decision) and Israel’s libel laws (recent Ilana Dayan decision) were rewritten to suit the Court’s selfish whim and without regard to precedent. Politics even intruded into regular cases (two examples: How did Ramon’s se*ual offence somehow became ‘without blemish’? How is it possible to acquit Ilana Dayan but require the production company to pay restitution due to the promo? Does anyone know any TV producer ever which doesn’t approve the promo in advance?? Both of these decisions [and many others] can _only_ be explained politically). And lets not talk about the de facto power the Court took for itself to decide appointments (e.g. recent Tax office case).
      .
      The real problem is that a self-appointed elite noticed it lost power and therefor tried to override democracy via the Court. Even in the States, this earned a sharp rebuke from FDR. In Dehila’s and the Court’s world, the “New Deal” would never have happened. Good thing nothing live in that imaginary world. The reaction (and we both already feel it) will be far more decisive than this meek bill (which won’t pass IMHO). At the very least – the court’s appointment procedures will be democratized, and many powers it took for itself will be returned. And there’s no need to pay attention to precedent more than the court under Barak and following ever did.
      .
      P.S. You didn’t notice the catch in Elbasan’s suggestion. He wants to use the coalition size as a limit. So the bigger the consensus, the bigger the majority required.
      If (for example) there’s a national unity government in a national emergency, and there are 119 MKs in a coalition, then the only way to override would be to get 120 MKs – including the vote of the remaining MK (who could be a Kahanist or an Islamist). That’s pretty twisted.

      Reply to Comment
    6. Y.

      Correction: “there’s no need to pay attention to *Barak and followers’* ‘precedent’ more than the court under Barak and following ever did.”

      Reply to Comment
    7. Piotr Berman

      Democracy in the sense of parliamentary supremacy has distinct dangers, and for this reason it is good to have a constitution. When constitution is adopted, at least hopefully the project is about more general and important principles that can be too easily dispensed during a crisis that can be manufactured or real.

      The controversy on Tal law is quite instructive. Apparently, the Court tried to defend a principle that Jewish citizens should be treated equally. One can postulate that it is a strange principle but apart from the abstract merit, it is a reasonable interpretation of the Basic Law, and very popular to boot. As far as I can guess, the bill satisfies postulates of a distinct minority that leverages its influence by being needed to cobble a ruling coalition.

      The Court could go “overboard” and examine laws using a postulate that all citizens should be treated equally, but rejected that.

      Frankly, it is very hard to see a case where Israeli High Court overruled something very important for the majority. Especially if by overruling we mean the total package: rule against the government and issue contempt of the court arrest orders in the case government does not comply.

      For example, the high court of New York State imposed a fine on the city of Yonkers for non compliance with a prohibition of discrimination in housing. The fine was 1 dollar, to be doubled for each day in contempt.

      Reply to Comment
    8. 1) I thought the new, CONSERVATIVE, Chief Justice would dislike this bill. As your site has pointed out, he was in the voting court majority nullifying, what, about 5 laws. And, its is rather conservative to want to keep the power you have, judge wise.
      .
      2) To say it yet again, and put, well, probably no one, asleep, you do have a meta-constitution in your Declaration of Independence. That document commits Isreal to a constitution which includes several, rather horribly liberal, actually, rights. If you are going to “make” a constitution piecemeal, then the court can just turn back those points of these wonderful Basic Laws which fail the, um, PATRIOTIC, ORIGNINALIST, promise as detailed, alas in actual words, in the Declaration of Independence. If you want to piecemeal a constitution through (sorry) the absurd reversible procedure of several Basic Laws (as you note in your piece), then the Court can just piecemeal nullify as the occasion arises; the Court will have to assume the power to do so, but that would come out of the common law background of the courts which existed PRIOR to the Knesset and which both the pre Knesset government and later Knessets affirmed. This fight is long term and will not easily be lost–or won. Right now, focus on not easily lost.
      .
      3) What your, um, Minister of Justice is trying to do is explicitly detail a state of exception (I am reading about that these days, starting with that wonderful fellow traveler, Carl Schmitt) with the Knesset as the body which suspends law. It won’t work, I think. For your Knesset has too many parties in coalition. To allow a state of exception ala this bill would place all in later jeopardy of becoming its victim. Actually, this is how Hitler, quite legally, assumed absolute power. What has to be stressed is that no minority party in the Knesset will be safe against this bill made law. And it would be fool hardy for some of your minority parties to think they will always be in coaltion. Ooops. Might have destroyed my argument with that last. But I will say not. Just because.
      .
      The best way to get the Court to assume the aforementioned piecemeal nullification of some parts of a piecemeal constitution which can be reversed as easy as it is made (yes, I’m being redundant on purpose) is to keep proding the Court on its review powers. If I were advising whoeever your Justice Minister works for, I would say concentrate on replacing the Justices sitting with, um, better people. Anything else will lead to a Court reaction. What for people to leaave the bench; I know, it’s hard not to get all of TRUTH at once, but it is best. And keep in mind that your Citizenship law was upheld by one vote. Your Court has many minds, and your Chief Justice is uncomforatably aware of this. He is trying to do the conservatives a favor by protesting this way.
      .
      I think you are going to evolve judicial independence, hating it every step of the way.
      .
      Fortitude!

      Reply to Comment
    9. Y,
      .
      FDR failed to pack the Court. It was the only piece of major legislation that his supermajority in Congress refused him; even his Vice President at the time (he had four, one per term) jumped ship and urged the Senate to refuse the measure. And, even so, much of the New Deal survived. FDR got to appoint a few in the regular way, and one or two of his enemies on the Court changed sides! You must allow your own loss, in potential, for law to survive and grow. And, FYI, FDR was a rather rich man–one of the elite. The world is not as simple as democratic majority us and evil elite them.

      Reply to Comment
    10. Y.

      Greg,
      .
      I know the story well. It just accidentally happened that right after FDR made his proposal, one of the justices in the Court changed sides, making the entire affair unnecessary. Of course, your country also has a political appointing of Justices (unlike in Israel), so it was easy to force the Court to comply after that.
      .
      As for your earlier posting, I rather like the idea of using the Declaration of Independence (it’s much more, uhem, Zionist and ‘conservative’ than some would like. For example, it’s merely a ‘Jewish State’ there, not ‘Jewish and Democratic’ [The latter was in one of the drafts, and was stricken out] so there’s no good way to twist it to some pseudo-binational state [For a funny example, see Orit Kamir’s ‘criticism’] or annul the Law of Return). The court has already sorta used it in a constitution-like way[1].
      .
      The problem is where you invent a concept of ‘meta-constitution’:
      A) There’s no such thing as a meta-constitution in the entire world. In the US, this would be a ‘political question’ and be explicitly ruled out of the province of SCOTUS[2].
      B) Nothing prevents the Parliament or the citizenry to start legislating a meta-meta-constitution. Ultimately, power rests with the people, not selective readings by an unelected elite.
      C) Opponents do not rally against the the Declaration (or against the Basic Laws) but against the Court’s unprincipled use thereof, so this solves nothing.
      D) The exact same reasoning would easily allow a later Court to declare the Torah a meta-meta-constitution and we don’t want to allow that.
      .
      I suggest actually trying to make a real constitution (which would inherently let the majority make lots of input to it) than merely relying on the Court’s say-so and hat tricks. Ultimately, the Court has little actual authority, and is going to get steamrolled if it annoys too many people (which it is close to doing). It would be much better to make a constitution now, rather than later, when the populace would be much more religious (per demographic trends).
      .
      P.S. While the 30s references are cute (and +972 actually let you do that, which shows how equitable the commenting laws are here), what the Ne’eman is trying to do is exactly like Canada’s nonwithstanding clause[3] (actually, more limited than that clause since there would be a time limit on overriding). While very consistent with a common law background (which after all, has parliamentary supremacy as defining attribute), this isn’t a real solution to the problems with the Court.
      .
      [1]
      http://he.wikipedia.org/wiki/מגילת_העצמאות#.D7.9E.D7.A2.D7.9E.D7.93.D7.94_.D7.94.D7.9E.D7.A9.D7.A4.D7.98.D7.99_.D7.A9.D7.9C_.D7.9E.D7.92.D7.99.D7.9C.D7.AA_.D7.94.D7.A2.D7.A6.D7.9E.D7.90.D7.95.D7.AA_-_.D7.91.D7.A2.D7.91.D7.A8_.D7.95.D7.91.D7.94.D7.95.D7.95.D7.94
      .
      [2]
      http://en.wikipedia.org/wiki/Political_questions#Amendments_to_the_Constitution

      [3]
      http://en.wikipedia.org/wiki/Notwithstanding_clause

      Reply to Comment
    11. Y.

      Sigh, until my other big comment (reply to Greg) passes the spam filter, I’ll just note that Peter’s characterization, while hilarious, has little to do with the reality of the Court’s ruling on the Tal Law (unless one argues Arab citizens are discriminated against by _not_ being forcibly recruited).

      Reply to Comment
    12. Piotr Berman

      Perhaps Y is correct. In Israel the Supreme Court pretends that Israel is a normal democratic state with a constitution where there is none.

      So the correct view on Israel democracy is
      “No Man’s life liberty or property is safe while the legislature is in session”.

      About my view on Tal’s law: I have no idea if being left out of the duty to do military service is a privilege or discrimination. Equal treatment of citizens requires that you do neither without a good explanation, e.g. you can require able-bodied folks to use stairs and reserve the elevator for the disabled, but reserving the elevator for say, disabled and those who completed military service could be questioned as arbitrary.

      If I understand Tal’s law it allowed to treat pacifist haredi as if they were Arabs. While there is a profound difference between reserving an elevator for those who cannot use stairs without hardship, or in a way totally unrelated to need, it is hard to see where there is a profound difference between the haredi and Beduins. Actually, many writers complain that there is none. (There are small differences, like I never heard about Beduins spitting on Armenians.)

      Thus it is a bit puzzling what was wrong about recruitment to IDF in Tal’s law that is not wrong without Tal’s law.

      Reply to Comment
    13. Piotr Berman

      I actually think that it would be a VERY good idea for Israel to address jointly problems of religiously conservative populations in education, settlements etc.

      Example 1: Zoo in Beersheva introduced two “Haredi days” per months when entrance would be restricted to modestly dressed member of one sex only and there was some snide controversy. Actually, places like a Zoo can stimulate interest in sciences so making them more accessible for the most religiously conservative can be a VERY good idea. Packaging it more ecumenically would help to integrate rather than separate. Zoo is a place where you bring children, and Beduins and Haredi have a lot of children.

      Example 2: some Haredi are very unconfortable looking at unmodestly clad women, but it is easy to get an approval for new buildings for Haredi. Beduin women dress quite modestly and Beduins have problems with approval for their villages. Relatively isolated villages that would incorporate both Beduins and Haredim in the Negev could provide congenial solution for both problems (and the problems of current unhappy neighbors of unhappy Haredim).

      Reply to Comment
    14. Y.

      Piotr,
      .
      The Tal Law gave conscription exemption to Haredi provided they were full-time Yeshiva students. The Haredi leadership very much wants this, I guess many of the student too, and arguably so do their coalition partners (I always wonder whether there’s any real enthusiasm to recruiting the Haredi). The big problem with the Law IMHO was it de facto banned working even though its intent was to integrate – the economic effects are still in dispute. Btw, Bedouins are exempt as well, but tend much more (compared to Haredi) to choose to enlist.
      .
      It would take a much more significant payback than the current one to retrieve losing three years in military service, but unfortunately there aren’t many good suggestions in the offing (the type you suggested [at least if I understand you correctly] was explicitly ruled against by Haifa’s district court, quite reasonably so).

      Reply to Comment
    15. Piotr Berman

      The subject of Torah study is bewildering to an agnostic. All Jewish men should study Torah (how much? enough to read 1/3 of parsha a week or full time?) but one cannot get a decent answer on such a question like: was it criminal or just what Levy and Simeon did in Shechem — with implications on what Jews should do in the West Bank etc. (the topic was raised in “talkback” discussions in JPost etc.)

      The only definite conclusions from Torah study that I could quickly find was that a Jewish man should do it, unless there is a life to save and NOBODY ELSE can save it.

      In any case, the law is targeted at a study of one particular religion, and in practice, and one flavor of that religion.

      Entire subject of military service is bewildering in the case of Israel. Why does Israel need that many soldiers? With an enormous number of conscripts and reservists, military is pressured to invent missions. One strange example that I have witnessed was a reserve unit for guarding a training facility that was at that time already useless and unused for 10 years. Because I came to Israel to work with Israeli collaborator on some problem and he was called to reserve duty to that unit, I commuted there from Tel Aviv.

      The details on the story how IDF controlled an outing from Ramallah to villages in Jordan Valley that involved a scuffle with participants who tried to make part of the trip on bicycles make no sense for a military that does not have a big surplus of soldiers to send them to ridiculous missions. As I could read, officers in charge decided to tolerate buses but not bicycles on that route, and monitored everything using quite a few soldiers. Confiscating bicycles is very time consuming, besides leading to conflicts with bicyclists, which is also time consuming, etc. Most people focus on the PR aspect, or cruelty, but one aspect is that IDF has a lot of time to waste.

      But to “seculars” military service is what Torah study is to the “religious” (quotes because these categories are not precise). Cutting it short would be … well, it is just not done.

      Reply to Comment
    16. Y.

      “In any case, the law is targeted at a study of one particular religion, and in practice, and one flavor of that religion.”
      .
      As I said, I doubt anyone really wants to recruit all these people. There’s the risk some will listen to their rabbis rather than their commanders, and they’re a logistical mess otherwise. Some of them can and will be cajoled to service (if only to promote integration), but the IDF can’t swallow the entire young Haredi population.
      .
      “Why does Israel need that many soldiers? With an enormous number of conscripts and reservists, military is pressured to invent missions.”
      .
      There’s probably a glut for non-combat services, but in combat units I think staffing is far more tight.
      .
      There were attempts to shorten the service but these have enormous bad luck – every time a shortening was seriously considered, it was immediately followed by a war. The 1973 draft already thought they were in for only 2.5 years…

      Reply to Comment
    17. Piotr Berman

      IDF could cut on combat missions. Do they really need a unit for fighting orchards or another for demolishing village roads? Guard every illegal settlement? Harass every village in Area C? Resolve disputes on broadcast frequencies with a combat mission?

      Reply to Comment