Thursday, April 26, 2018

 Vic Rosenthal's Weekly Column

A hot potato today in Israel’s Knesset is the so-called chok hahitgabrut (literally, “the overriding law”) which would provide a way for the Knesset to pass a law over the objections of the Supreme Court. Various versions of such a law have been considered, which require larger or smaller majorities in the Knesset to override a Court decision to throw out a law. Another approach would be to require more than a simple majority of justices of the Court in order to reject a law passed by the Knesset. The precise form the law might take is still up in the air.

The issue that is presently driving the controversy is a series of Court decisions that have made it impossible for the government to deport any of the 38,000 African migrants that entered the country illegally since the early 2000s. Those who want such a law say that the unelected Court rides roughshod over the views of the majority of the citizens, which are expressed by the votes of their representatives in the Knesset. That’s undemocratic, they say. Opponents argue that in a liberal democracy it is necessary to protect minority rights, which is what the Court has done.

Critics of the Court have been complaining for a long time that it is biased leftward, and that it sticks its nose where it shouldn’t, like the proposed deal regulating the concession for the natural gas recently discovered off Israel’s shores; or the ownership of property in Judea and Samaria, decisions that forced the demolition of communities and the removal of people from their homes.

But the intricacies of the gas deal were understood by only a small percentage of Israelis, and the inhabitants of the razed settlement of Amona did not find a lot of empathy in the general population, many of whom thought of them as extremists. The migrant question, on the other hand, resonates more broadly. It pits the residents of South Tel Aviv – who say that the migrants who are concentrated in their neighborhoods have brought crime, dirt and fear to them – against a coalition of organizations that claim to be defending the human rights of the migrants. In fact, many of these groups are funded by unfriendly foreign governments, or groups with a political motive to embarrass our government (e.g., the Israel Religious Action Center).

A balance between the powers of the various branches of government is important to protect minority and majority rights. A comparison with the Supreme Court in the US will be helpful in understanding just how unbalanced the situation in Israel is.

The American court only has appellate jurisdiction, which means that it can only rule on cases that have been appealed from lower courts. It can decline to hear a case, but it does not have original jurisdiction in which it can take up a case that has not already been heard by a lower court, except in special circumstances (such as one state suing another). The Israeli court is the highest appellate court, but it also acts as the High Court of Justice – bagatz – which can rule on anything done by any branch of government, including the army, municipalities, and – importantly – laws passed by the Knesset, whether or not they have been ruled on by a lower court.

The American legal system includes a doctrine of standing, which means in particular that a person can’t challenge a law or government action unless they can convince a judge that they could be directly injured by it, or that they would be prevented from exercising their legitimate rights by threat of legal sanction. But in Israel, anyone can petition the Supreme Court if he believes a law or government action is illegal or not in the public interest. As a result, anyone can paralyze the government by paying a couple of thousand shekels to file a petition. For example, several foreign-funded NGOs have recently petitioned the Supreme Court to force the IDF to stop using snipers to defend the border fence with Gaza.

In America, some matters are considered political and not legal, and are therefore not taken up by the courts (they are considered not justiciable). Two such areas are foreign policy and impeachment. In Israel, the limitations on justiciability are much weaker.

American Supreme Court justices, including the Chief Justice, are appointed by the President and then confirmed by the Senate, after which they serve for life unless they are impeached, resign or retire. Interestingly, there are no constitutional requirements for a justice to have judicial experience, or even a law degree! 

In Israel, the justices are appointed by a committee which includes members of the Bar Association and sitting Justices, as well as the Justice Minister and representatives of the government and opposition Knesset factions. There is a mandatory retirement age of 70, which in practice means that Israeli justices tend to serve for shorter terms than American ones. There are specific qualifications of legal experience. The President of the Court is the most senior of the Justices.

The method of appointment of justices in Israel tends to make the Court reflect the views of the legal establishment, which critics say is biased toward the left end of the spectrum. It tends to prioritize what it perceives as the rights of individuals over the needs of the state, and Israel’s democratic character over its Jewish one.

An associated issue is the Attorney General. In the US, the Attorney General is appointed by the President and confirmed by the Senate, and serves as the government’s lawyer. He or she is required to defend the government in the courts, including the Supreme Court, and on several occasions attorneys general have been fired by the President for refusing to do so.

In Israel, the Attorney General is appointed by the Justice Minister from a list of candidates drawn up by a commission whose majority also represents the legal establishment. The Attorney General can prevent the government from taking an action by saying that he or she believes it to be illegal, and will not defend it before the Supreme Court. The authority of the Attorney General is, like many things in Israel, unclear.

One example of the possible conflicts involving the Supreme Court, the Attorney General and the government, is the legal peril faced by PM Netanyahu. The police have recommended that he be indicted in several corruption cases, and it is up to the Attorney General to decide whether to indict him. The law is not clear whether an indicted PM is required to resign his position, although the Attorney General has expressed the opinion that if indicted, he should resign. But supposing he is indicted, Netanyahu could refuse to quit. Then the Supreme Court would undoubtedly take up the question, and the Attorney General likely would not defend him before it!

There is also the Nation-State Law which has been debated for several years now. It is intended to explicate the sense in which Israel is not only a democratic state, but the state of the Jewish people. Various versions of the bill did not get off the ground because the Attorney General said that they were not “constitutional” (Israel doesn’t have a constitution, but it has Basic Lawswhich serve some of the purposes of a constitution). Even if the Attorney General doesn’t object, the Supreme Court is expected to be very tough on any non-vacuous Nation-State Law. A former President of the Court who inspired the activist judicial philosophy that characterizes it today, Aharon Barak, famously opined that the meaning of the phrase “Jewish State” should be “identical to the democratic nature of the state.” In other words, a Nation-State Law would have to be so trivial as to be meaningless.

A version of the law that will permit the Knesset to override the Supreme Court  will be voted on by government ministers this Sunday, after which it will be submitted to the Knesset. The Opposition, which has come to depend on the Court to make up for its lack of seats in the elected Knesset, is pushing very hard against it.

The deportation of illegal migrants, the Nation-State Law, and numerous other important issues depend on the ability to take control of the state away from the legal establishment and return it to the elected government. Israelis voted for a right-wing government – they should be able to get right-wing policies. This is a bill that needs to pass.




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