Analysis from Israel
…and it was perpetrated not by Justice Minister Daniel Friedmann, but by the Supreme Court.

One particularly ugly aspect of the war between Justice Minister Daniel Friedmann and the Supreme Court is the depths of hypocrisy to which the justices have sunk.

Consider, for instance, former Supreme Court justice Dalia Dorner’s address to a conference at Jerusalem’s Van Leer Institute last week. “A constitutional coup is occurring in which the government is seizing control of the judiciary,” she proclaimed.

Another former justice, Yitzhak Zamir, added specifics. “The justice minister began unilaterally, without consulting [the justices],” he complained. And: “[Judicial] independence requires the minister to waive his powers to appoint [court] presidents and deputy presidents; Minister Friedmann must withdraw his proposal to appoint search committees [for these appointments].”

Given that thus far, Friedmann has succeeded in effecting exactly one minor change – term limits for court presidents – quite how the government is “seizing control of the judiciary” is unclear. Even more outrageous, however, is the claim that when ministers and legislators actually do their constitutionally mandated jobs, this constitutes a “constitutional coup.”

THE BASIC Law: The Judiciary, for instance, lists various issues on which the Knesset must enact legislation – including the appointment of court presidents. Thus when the Knesset enacted Friedmann’s term limits proposal into law, it was exercising an authority mandated by the Basic Law, which the Supreme Court itself considers constitutional legislation.

Nor did Friedmann exceed his authority by proposing the bill: The cabinet is authorized to propose legislation on any issue. Yet in Dorner’s Orwellian universe, these exercises of constitutionally mandated authority constitute a “constitutional coup.”

Similarly, by law, only the justice minister can appoint court presidents (after consulting with the Supreme Court president); Friedmann’s search committees are meant to help him exercise this legally mandated authority more wisely. Moreover, the court itself has ruled repeatedly that a minister may not abdicate responsibility for decisions entrusted to him by law.

Yet in Zamir’s Orwellian universe, what Friedmann ought to do is violate the law – as previous justice ministers did – by ceding his legally mandated responsibility to the Supreme Court president.

Likewise, under existing constitutional law, the one branch of government with no role in the legislative process is the judiciary. Thus by refusing to consult the justices about legislation, Friedmann was honoring the constitutionally mandated separation of powers between the branches of government. Yet in the justices’ Orwellian universe, proper behavior means disregarding such constitutional niceties.

THE ABOVE examples, however, are only the tip of the hypocrisy iceberg – because, as MK Reuven Rivlin correctly told the conference, a constitutional coup actually has occurred. And it was perpetrated not by Friedmann, but by the Supreme Court.

In 1949, shortly after Israel’s establishment, elections were held for a body that would serve as both a constitutional convention and the first Knesset. In 1950, that body decided that the constitution should be enacted piecemeal, with each subsequent Knesset retaining the original’s constitution-making powers; that decision was never revoked.

To this day, therefore, the Knesset is the only body authorized to enact constitutional legislation.

Yet in 1992, then Supreme Court president Aharon Barak proclaimed a “constitutional revolution.” Two newly enacted Basic Laws, he declared, were not only constitutional legislation; but for the first time, they empowered the court to overturn ordinary Knesset legislation.

Given that the laws passed by votes of 23-0 and 32-21, respectively, their constitutional status is dubious: No other democracy has a “constitution” approved by a mere quarter of the legislature. Moreover, not only did neither law explicitly empower the court to overturn legislation, but an article that would have done so was removed during the Knesset’s deliberations – leading many MKs who voted for the laws to conclude that they did not confer this power.

Thus Barak’s “constitutional revolution” was essentially a judicial rewrite of the existing constitution, with no mandate from the only body authorized to make such amendments: the Knesset.

BUT NOT content with this, the court has since usurped an even more basic Knesset function: the power to enact constitutional legislation. Since 1948, for instance, the Knesset has considered – and rejected – no fewer than 15 proposed Basic Laws on “social rights,” such as employment or welfare. One such bill was voted down at the very same time as the 1992 Basic Laws were enacted; four others have been proposed and rejected since. Thus clearly, the Knesset (a) does not believe that the 1992 Basic Laws encompassed social rights, and (b) does not want to confer such rights.

Yet in 2004, the court ruled that one of the 1992 laws, Human Dignity and Liberty, did grant constitutional status to social rights, such as the “right” to a court-ordered minimum welfare allowance. In short, it not only created a new constitutional “right” without Knesset authorization, it created one that the Knesset had explicitly rejected. It thus effectively declared that the Knesset has no role in the constitutional process at all: It is not needed to enact constitutional legislation, and may not even prevent the court from doing so.

NOR WAS this a one-time aberration. In 2006, for instance, a majority of the court added two more “rights” – equality and the right to marry – to Human Dignity and Liberty, even though the Knesset, due to lack of consensus, had deliberately excluded these rights from the law. In short, to quote Rivlin, “the judge has replaced the legislature and made it superfluous.”

Rivlin also correctly identified the proper remedy: The Knesset must enact a Basic Law “that delimits clear boundaries to the powers of each branch [of government] and [determines] when the Supreme Court may interpret the constitution, the limits to court intervention and when legislation must be enacted by the sole representative of Israel’s sovereign [citizenry] – namely, the Knesset.”

And that, in a nutshell, is the real problem with Friedmann’s initiatives: Despite much grandiose talk about doing precisely that, in practice, he has moved forward only on trivial issues such as search committees and term limits for court presidents. And he has thereby allowed the real constitutional coup – the judicial one – to continue unchecked.

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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