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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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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