The real threat to democracy

After all, citizens elect governments primarily to implement specified policies. Thus if unelected legal officials routinely prevent governments from doing so, even on the most important issues of the day, what’s the point of having elections? And as two incidents of the past two weeks make clear, that’s increasingly becoming the case.

The first was the National Labor Court’s shocking ruling on July 30 ordering the government to freeze two tenders for constructing private ports and instead negotiate with the port unions for permission – thereby potentially killing the most important reform on the government’s economic agenda.

A 2009 study by the Antitrust Authority found that Israel’s ports are 30% less efficient than similar-sized ports elsewhere, costing the economy some NIS 5 billion a year. The 2011 Trajtenberg Committee on socioeconomic reform similarly concluded that “inferior service and low production in Israel’s ports cost the economy, which depends heavily on the ports, hundreds of millions of shekels a year. This is before taking into consideration the indirect damage, stemming from the business uncertainty imposed on the economy by the disruptions [in the ports’ work] and delays in developing new port infrastructures.”  

Nobody disputes that the ports’ inefficiency and high costs stem primarily from their monopoly status. This enables their unions to extort excess wages (the average dockworker earns 2.5 times the economy’s average wage), dictate outrageous perks such as paying “on-call” port pilots full salary to sit at home and do nothing, and shut down the ports on any trivial pretext, including demands for additional meal vouchers, a desire to dictate the identity of the port CEO’s personal assistant, or even a union member’s wedding. Nor does anyone dispute that numerous past attempts to bribe the unions into better behavior have produced nothing but higher government wage bills.

Consequently, the government concluded that the only solution is to introduce competition by building new, private ports that the existing unions won’t control. This has become a top priority for three senior ministers: Transportation Minister Yisrael Katz, Economy and Trade Minister Naftali Bennett and Finance Minister Yair Lapid. Moreover, it’s clearly within the government’s prerogative: On what conceivable grounds should the government need the unions’ permission to build a new port, or any other vital bit of public infrastructure? After all, it’s the government – not the unions – that’s responsible for meeting the country’s infrastructure needs, and for coming up with the necessary funds.

But the labor court thought otherwise: It ordered the government to negotiate with the Histadrut labor federation. And that decision, if not overturned (Katz vowed to appeal to the Supreme Court), will sound the death knell for the government’s flagship economic policy. Even if the court’s interference doesn’t scare off the eight foreign companies that have expressed interest in the tenders, the new ports will be pointless if they require the Histadrut’s consent. The labor federation has already said it will agree only if these ports, too, are under the unions’ thumb.

The second incident was Attorney General Yehuda Weinstein’s equally shocking ruling last week ordering the Knesset to finish enacting new legislation on drafting Haredim by August 20. This legislation, which passed its first Knesset reading only on July 23, is one of the most important bills the current parliament is likely to consider. A good law could spur Haredi integration into the army and workforce; a bad one could set this goal back decades.

Consequently, the committee charged with preparing the bill scheduled multiple hearings at which outside experts and interested parties could present arguments pro and con and propose changes. Moreover, several MKs are demanding major revisions – which in fact are sorely needed, as David Weinberg aptly explained in this paper last week. But Weinstein’s ruling, by allotting a mere four weeks for these discussions, would make this impossible. Knesset committees typically spend months on major legislation when it requires significant changes; bills can be rushed through only when they’re left virtually unchanged.

To his credit, Knesset Speaker Yuli Edelstein bluntly told Weinstein that parliament’s legislative timetable is none of his business. Indeed, as Edelstein’s letter correctly noted, the Knesset would be neglecting its duty if it didn’t give such an important bill thorough consideration: “The job of the Knesset and its committees is to examine bills the government submits, hold a public discussion and listen to the people involved in the matter, including those the government did not hear, and use its judgment.”

But given the Supreme Court’s long-standing position that the attorney general’s legal opinions are binding on the executive, Weinstein has enormous power to extort Knesset compliance by pressuring the executive even if he lacks the power to dictate directly to parliament (which, incidentally, isn’t guaranteed; the court has never fully addressed this issue). In this case, for instance, existing law technically mandates drafting some 60,000 Haredim immediately. The government deemed this untenable, so the defense minister issued deferrals until the new law (which ostensibly stipulates a gradual phase-in) passes. But court petitions have been filed against these deferrals. Hence Weinstein could simply threaten to issue a legal opinion backing the petitioners unless the Knesset meets his legislative timetable.

Thus we have a labor court seeking to stymie one of the government’s flagship reforms, and an attorney general seeking to prevent MKs from influencing one of the term’s flagship pieces of legislation. And in both cases, they may yet succeed.

Under these circumstances, why should citizens even bother voting? And why should anyone with a desire to effect change want to run for office? After all, you don’t need any kind of elected government – much less one staffed by talented people with good ideas – merely to rubber-stamp the whims of unelected legal officials. For that, an automatic stamping machine would suffice.