Analysis from Israel
Imposing higher fees on “public petitioners” may keep them from going to court.
Prior to his appointment as Supreme Court president, Justice Asher Dan Grunis was widely billed as an opponent of the court’s judicial activism. Last week, he finally justified that reputation: In one single ruling, he did more to stem the tide of so-called public petitions than any individual or group since former Supreme Court President Aharon Barak opened the gates to such petitions more than three decades ago.

Until the 1980s, Israel’s justice system followed the same rules as other Western democracies: To petition the Supreme Court in its role as High Court of Justice, the petitioner had to have a direct personal interest in the case. But after joining the court in 1978, Barak soon persuaded his fellow justices to abolish that rule, known as “standing.” Instead, the court began allowing anyone at all to petition it on any issue. Thus was born the “public petition”: a petition filed by a nongovernmental organization that wants the court to overturn government policy, without any need to show that any specific individual has been harmed by that policy.

Over the ensuing decades, the court used such public petitions to overturn government policy on numerous issues. This had two pernicious effects: First, it undermined democracy, since unelected justices were now regularly nixing policies set by elected governments. Second, it clogged the court with a flood of public petitions. Consequently, people seeking redress in ordinary civil and criminal cases often had to wait years for a ruling.

To grasp just how excessive the court’s caseload is, consider the following: Israel’s Supreme Court received 9,775 new cases last year. That’s more than the 7,857 submitted to the US Supreme Court in 2010, though America’s population is 40 times larger, and 17 times as many as the 569 filed in Canada’s Supreme Court in 2011, though Canada’s population is 4.4 times larger. Granted, most of the Israeli cases are mandatory civil and criminal appeals over which the court has no discretion. But there were 1,684 new High Court petitions alone in 2011, or 0.2 per 1,000 citizens – about 10 times the total Supreme Court caseload per 1,000 people in either the US (0.03) or Canada (0.02).

Last week, however, Grunis finally took a stand. It was, necessarily, a limited one: Since most justices remain confirmed activists, he lacks support to challenge public petitioners’ right to file such petitions. Instead, he used the laws of economics: After rejecting a public petition (against the government’s decision to get a private organization to finance construction of a public hospital by letting it offer some private treatments there), his panel ordered the three NGOs that filed it to pay unprecedentedly high court costs of NIS 45,000. That creates a financial incentive for all public petitioners to think twice about filing such petitions.

Though ordinary people who lose a case are frequently charged court costs, the norm for decades has been that public petitioners are almost never charged. The Association for Civil Rights in Israel, for instance, said last week that the group had been charged court costs only once in 30 years – and then it was representing a private individual rather than acting as a public petitioner.

The reason for such generosity is obvious: Even the most activist justice can’t intervene in government policy until someone brings a case. Thus the court, which for decades has been staffed mainly by activist justices, wanted to ensure a steady stream of such petitions. And that required making it cheap and easy for NGOs to file them.

Recently, however, some justices have started pushing back. Last month, for instance, the court charged the Ometz NGO NIS 15,000 in court costs after rejecting a public petition asking it to order a criminal investigation into an incident already being probed by the state comptroller (it agreed with the attorney general’s decision to await the comptroller’s report before deciding whether a criminal probe was warranted). This is far more than it has ever been charged before, Ometz chairman Aryeh Avneri told Haaretz last week, and it “makes us think several times whether we can petition for the public again.”

“Such high expenses on public petitioners, most of whom rely on donations, can curtail the movement’s legal activity,” agreed attorney Mika Kohner Kerten of another frequent public petitioner, the Movement for Quality Government in Israel.

Of course, even NIS 45,000 is small change for an NGO like ACRI, whose annual income exceeds NIS 10 million. Nevertheless, ACRI spends almost every shekel it receives. Thus if enough cases start resulting in fees of this magnitude, it will have to think twice about filing them, because doing so will mean curtailing outlays on other activities.

Clearly, not all justices support high fees. In a 2-1 ruling earlier this month, for instance, the court slashed the NIS 25,000 fee a lower court imposed on the Gisha NGO by more than half. But an NGO never knows in advance which justices will hear its case. Thus even if only some justices impose relatively steep costs, that’s enough to have a deterrent effect.

This is far from being an ideal solution to the public petition problem. The real solution is for the Knesset to enact legislation reinstating the rules of standing that existed in the pre-Barak era, and still exist today in many other Western democracies. In a democracy, policy decisions are supposed to be made by the elected government; it’s blatantly undemocratic to allow NGOs whose policy positions were rejected by the cabinet or Knesset to ask the High Court to impose these positions on the government by judicial fiat – and even more undemocratic when the court accedes to this request, as it all too often does.

But since the Knesset has so far failed utterly to enact such legislation, we are at the mercy of the High Court’s own discretion as to how activist or restrained it chooses to be. By creating financial disincentives for public petitions, Grunis and a few like-minded colleagues have taken a modest step toward making the court less activist. And for that, anyone who cares about Israeli democracy should be grateful. 

The writer is a journalist and commentator.

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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