Can there be a constitutional crisis without a constitution?
Apparently Israel is headed toward one, as Prime Minister Netanyahu and his Likud party confront Israel’s Supreme Court.
The Court says that Netanyahu wants to render it powerless, destroying the independent judiciary that is a requirement for democratic governance. Netanyahu says that the court has arrogated too much power to itself, so much so that the Knesset and the Government, which in fact are the democratically elected voice of the citizens, are the ones that have been neutered.
Both sides appeal to the concept of democracy. But both sides understand that the conflict is about power.
What brought this issue – which has been simmering for years – to a boil now is that the PM would like to pass a law granting him immunity from prosecution on corruption charges as long as he is in office. And he also wants a law that will enable the Knesset to override a Supreme Court decision to overturn a law it has passed.
It is very unfortunate that the issue of checks and balances among the branches of government has to be tied up with the question of immunity for the PM, since naturally anything anyone says about it will be attributed to the most obvious political motives. But the balance of powers question does need to be addressed.
Let me just insert a bit about the PM’s immunity here: I’m for it. The last few years have seen the PM’s time increasingly taken up by several police investigations, countless sessions of questioning, and daily media frenzies based on leaks from the police and prosecutor’s office. There is absolutely no doubt that his ability to do the job he was elected to do has been severely impacted. Not only this, but his political position has been undermined by the flood of unproven allegations leaked to the hostile media. No matter how you feel about Netanyahu, this is both dangerous for the nation and personally unfair to the PM.
There are good solutions to this in other democracies. In France the president has immunity by law from questioning prosecution for the period of his term; statutes of limitations are suspended during it, but he can be prosecuted immediately upon leaving office. He can be removed from office by impeachment by a special court that is convened by both houses of the French parliament. In America, although there isn’t a constitutional provision for it, the majority legal opinion is that a president must be impeached by the House and convicted by the Senate before he could be prosecuted.
Israel does not have a constitution as such. The very first Knesset was supposed to adopt one six months after the establishment of the state. It did not, because various factions were unable to agree on many issues, and because David Ben Gurion felt the enterprise would be too divisive. Instead, Israel has fourteen Basic Laws, which deal with important subjects and which will supposedly (don’t hold your breath) one day be expanded and put together to be a constitution.
Most (but not all) of these Basic Laws can be changed by a vote of the majority of the Knesset members present (assuming a quorum). Some of them are detailed and some vague, some subjects are not covered at all, and the empty spaces have to be filled by legislation or by legal interpretations. This provides fertile ground for a very activist court. The Supreme Court has defined its own role over the years, especially since the 1980s. And an exceedingly broad role it is.
In most legal systems, access to the courts is reserved for those with “standing” – a stake, financial or otherwise, in the outcome. But in Israel, anyone can petition the highest court anytime for any reason. So you have European-funded NGOs petitioning the court on behalf of Palestinian residents of the territories!
In most systems, there are limitations on the kind of matter that is “justiciable” – that is, appropriate for the courts to decide. Some matters are considered essentially political, and some, like issues related to security, require special expertise. But the definition of “justiciable” has expanded to include almost anything that the government does.
There’s more. As Evelyn Gordon writes,
Whereas once the court would consider only whether a government action accorded with the letter of the law, the court began routinely overturning decisions which it considered “extremely unreasonable,” on the grounds that extreme unreasonability is ipso facto illegal. In the words of [former Court President Meir] Shamgar, “unreasonability that extends to the heart of the issue makes the decision of a government authority illegal.”
This combination gives the Court virtually dictatorial powers in every realm of government action. The Court can review any law passed by the Knesset and any administrative decision of any government official, including decisions made by military or security personnel. It is the first and last court to consider such laws and decisions; so there is no higher court to appeal to. And they can throw out a law or decision not only because it’s unconstitutional, but because in their eyes it is “unreasonable.”
Israel’s Supreme Court is probably the most powerful such organ in any democratic country. The US Supreme Court, in anyone’s wildest dreams, has never been this “activist.” The Court sees itself as sort of a philosopher-king as recommended by Plato, because it believes that it can be completely objective and is not dirtied by the muddy waters of politics. If only that were possible!
All judges in Israel, including the justices of the Supreme Court are chosen by a 9-member judicial selection committee, which meets in secret. Three of its members are justices of the Supreme Court, and two are representatives of the Bar Association. These five often vote as a bloc, which means that the left-leaning legal establishment controls the selection of judges. These philosopher-princes were recently embarrassed when it turned out that an influential member of the committee and head of the Bar Association was caught trading judicial appointments and promotions for sex.
A right-wing government and a left-leaning Court would be expected to be in conflict. But the balance of power has moved too far in the direction of the Court in recent times, paralyzing the executive and legislative branches. The Court almost prevented the signing of an agreement to sell natural gas internationally, and has prevented the repatriation of illegal migrants that have made life hell for residents of South Tel Aviv. It has ordered the demolition of whole Jewish communities in the territories because of NGO petitions that (sometimes unknown) Palestinians have claims on some of their land. It is almost certain to move to overthrow the newly-passed Nation-State Law. The Court is the main reason for complaints that Israelis vote for the Right but get policies of the Left. It is not accidental that the expansion of the Court’s powers came at about the same time that the historic monopoly of the Labor party was smashed by Menachem Begin.
The opposition to Netanyahu and the Court itself view – or pretend to view – the situation today as nothing less than an attempt to overthrow democracy and the rule of law, and install Bibi as a fascist dictator. The Times of Israel reports,
Judges on the Supreme Court have warned they could take “extreme steps” in order to block legislative proposals that could severely curtail the court’s powers and shield Prime Minister Benjamin Netanyahu from prosecution, Israeli television reported Friday.
“It seems as if the prime minister and the candidates for the role of justice minister want to shatter and destroy the legal system,” Channel 13 news quoted unnamed Supreme Court justices saying during private talks.
“The immunity bill alongside the override clause is unbelievable. We won’t hesitate to take harsh and extreme steps because history will judge us,” they were said to add.
What these steps might be remain unspecified. But it’s clear that we will be in uncharted territory with no clear directions to get back if an open conflict between the government and the Court erupts.
An immunity bill, along with some sensible restrictions on the Court’s power – a return to requiring that petitioners have “standing” in a case, a retreat from the ideas that “everything is justiciable” and that anything the justices find unreasonable is also illegal, would be a good start. A change in the way judges are selected to make it fairer and more transparent is probably necessary.
None of these things destroys democracy or introduces fascism. Indeed, by restoring eroded checks and balances, they would make the country more democratic. But the Supreme Court is the last bastion of real power for the Left in Israeli society, and they are going to fight to keep it, regardless of collateral damage.