Restore the court to its proper place

Justice Minister Haim Ramon’s proposed Basic Law: Legislation has generated a storm in legal and political circles. Yet the critics have ignored the proposal’s most outrageous element: the Supreme Court’s active involvement in its drafting, in gross violation of the principle of a separation of powers among the legislative, executive and judicial branches.

The bill itself is not without positive elements. First, it would finally set rules for how Basic Laws, which the Supreme Court regards as constitutional legislation, must be passed. This is vital to prevent a recurrence of the farce generated by the last two Basic Laws, which passed by votes of 32-21 and 23-0, or about one-quarter and one-sixth of the 120-member Knesset – thereby making Israel the only democracy in history whose “constitution” was adopted by minority vote. That the Supreme Court cites these laws, passed by considerably less than half the Knesset, as justification for overturning legislation passed by far larger majorities is obviously problematic from a constitutional standpoint.

Second, the bill deserves credit for acknowledging that since a constitution is supposed to reflect a broad consensus on the rules of the game, constitutional legislation ought to require more than a one-vote majority to pass. Unfortunately, the threshold it sets – 70 MKs, or 58 percent of the Knesset – is still too low, since many governing coalitions are that size. The bill would thus enable constitutional legislation to be enacted without any support from the opposition, thereby sabotaging the main purpose of a constitution: genuine societal agreement on basic ground rules.

Finally, the bill would for the first time introduce a legislative override of the Supreme Court. Certain other democracies, such as Britain and Canada, also enable such overrides, but in Israel, they are absolutely essential, since Israel lacks the mechanism used by other Western democracies to maintain the balance of power between the court and the other branches of government: the appointment of Supreme Court justices by the elected branches.

Unfortunately, the bill’s proposed override is too limited as long as the current judicial appointments system, which essentially allows justices to select their own successors, remains unchanged: It would enable the Knesset to reinstate a law that the court declared unconstitutional, but only for five years, after which the law could not be reenacted.

THE STORM over the bill, however, is due mainly to Ramon’s plan to pass it separately rather than as part of an overall constitutional package. That is indeed a valid concern. A constitution usually contains compromises aimed at satisfying different sectors of the population, and it is these compromises that enable it to attract widespread support. But such compromises are almost impossible to craft when the constitution is passed piecemeal, without serious negotiations over the total package, and that will ultimately undermine support for the finished product. Nevertheless, the judiciary’s involvement in preparing the bill ought to be of equal concern. Yet this problem has been almost completely overlooked.

Ramon not only met with Supreme Court President Aharon Barak about the bill; he even announced that its content had been coordinated with Barak. Senior legal officials added that Barak played an active role in drafting the bill. The Justice Ministry, which is finalizing the actual wording, formally asked the Supreme Court for feedback on its draft. And Judge Boaz Okon, the director of the Courts Administration, publicly announced his support for the bill, as if the judiciary were just another lobby trying to influence the Knesset.

Allowing the judiciary an active role in drafting legislation – a job that all other democracies entrust exclusively to the elected branches – not only outrages the separation of powers principle; it gives the court excessive input into the content of our constitution. Normally, the legislature and executive write laws and the courts interpret them, thereby enabling each branch to contribute to the law’s ultimate shape.

But while Ramon’s bill would duly anoint the Supreme Court as the constitution’s authorized interpreter, with explicit power to declare ordinary Knesset legislation unconstitutional, the court is also its co-author. Thus the other branches of government have been rendered superfluous.

AT AN academic conference last month, former Supreme Court justice Yitzchak Zamir was distraught over a bill now before the Knesset that would authorize the Supreme Court president to draft binding ethical rules for judges. Zamir argued that out of respect for the separation of powers, the Knesset should be denied any say over judicial conduct – even to the minimal extent of authorizing the court president to draft binding rules. “Something has changed in the perception of Israeli society, certainly in that of the Knesset, regarding the concept of separation of powers, and something has happened to the respect that Israeli society and the Knesset have for judges,” he mourned.

Something has indeed happened to the separation of powers principle. But the main culprit in this principle’s radical erosion is neither the Knesset nor Israeli society, but the Supreme Court itself. It is the court that has usurped the executive’s power by overturning numerous government policies merely because the justices deemed them “unreasonable” – even though setting policy is the executive’s main task, and the question of whether or not such policies are reasonable is precisely what voters are asked to decide in every election. It is also the court that has usurped the legislature’s power, both by overturning Knesset legislation without explicit authorization, based solely on two Basic Laws passed by a minority of the legislature, and by interpreting other laws in ways diametrically opposed to the legislators’ intent, as clearly indicated during the drafting process.

And now, the court is taking its usurpation of the elected branches’ prerogatives to new heights by encroaching on the job of drafting the country’s constitution.

One can decry Zamir’s crocodile tears over the eroding separation of powers, but one cannot reasonably expect an obviously power-hungry Supreme Court to restrict itself.

Only the elected branches of government can restore the court to its proper place. And a good place to start would be by removing the court from the constitutional drafting process.