A Dangerous Moment at the Court

On Thursday, the Supreme Court of Israel will hear arguments in a case even more momentous – and more threatening to the unity of the country — than the arguments heard a few weeks ago concerning the “reasonableness law.”

If the Court overturns the reasonableness law – which would in the judgment of this foreign lawyer be an outrageous decision – it is likely to have no immediate consequence. According to an analysis by Dr. Amir Fuchs for the Israel Democracy Institute, in all the years since the founding of the state, the Supreme Court has overturned government actions for being “unreasonable” on a mere 20 occasions.  (Indeed, the infrequency of such decisions has been cited by the government’s opponents as showing there is no need for the reasonableness law.)  Therefore, should that law be invalidated by the Court, an actual case bringing the issue to a head is unlikely to arise for some time. In response to inquiries as to whether the government will respect the Court’s decision, the Prime Minister could credibly decline to answer what could be characterized as a hypothetical question in the absence a concrete case raising the question.

But there would no escaping the immediate constitutional crisis that would be precipitated by a Court ruling invalidating the law at issue in tomorrow’s case.

That law, adopted by the Knesset in March, prohibits the Court from ordering the prime minister to recuse himself –that is, take a leave of absence – specifying that removal of the prime minister cannot be required for any reason other incapacity, supported by a two-thirds vote of the cabinet and ratified by a super majority of the parliament. That measure was passed after a letter sent to Prime Minister Netanyahu by Attorney General Gali Baharav-Miara advising him that, in her legal opinion, a conflict agreement previously signed by Netanyahu under auspices of the Supreme Court barred him from being involved in his government’s judicial overhaul legislation.

Based on Israeli press reports on what the conflict agreement says, I think the Attorney General’s position is, if I may use the phrase, “extremely unreasonable.”  But let me not argue about the meaning of an agreement written in a language that I do not speak. The issue here is an assault on democracy far more grave than any posed by limiting the Court’s ability to veto laws passed by the Knesset that it deems “reasonable.”

Two petitions are now pending before the Court asking that its justices order the Prime Minister to stand down from the office he occupies as a result of the democratic procedures specified by Israel’s Basic Laws. Presumably, if he, the head of the Israeli government, agreed to abstain from any participation in the most critical political issue in Israel today, they would allow him to continue to nominally occupy that office. That seems to be the clear implication of a suggestion by Supreme Court President Esther Hayut in a preliminary hearing that the Court might delay the effectiveness of the recusal law as an alternative to striking it down.

That “alternative” would not be one bit less radical and anti-democratic than simply invalidating the law.

Think again about what the tribunes of democracy are suggesting here: that unelected judges should order an elected prime minister to relinquish his office, or continue in it as a political eunuch. That’s pretty rich, coming from quarters that have been proclaiming that adoption of the government’s judicial reform proposals would constitute the “death of democracy.”

Unlike a Court decision purporting to invalidate the “reasonableness law,” an adverse ruling on the recusal measure would require an immediate response from the government. The prime minister would have either (i) to declare the Court’s action null, void and of no effect,(ii) vacate his office or (iii) stay and say nothing further about judicial reform, including, presumably, refraining from any criticism of the Court’s decision.

And what if he refuses to vacate his office and the prime minister’s residence, and keeps talking about judicial reform? Does the Supreme Court order the IDF to physically remove him? And if the IDF receives such an order or request, what should it do?

I don’t think I’m a Cassandra who easily predicts doom from things that eventually turn out to be okay. Given that disposition, I’ve previously scoffed at predictions of violence resulting from the judicial reform controversy. I’m no longer so confident.

May Esther Hayut and her colleagues have the wisdom, restraint and patriotism to moot the question.