Another View – About That Plea
David Horovitz’ “plea to the Prime Minister” about the government’s decision to refuse to honor the Supreme Court’s ruling returning the previous 2nd Television and Radio Authority’s governing council – even though its term is long expired, it lacks a legal quota and a new council has already been appointed – is long on pathos but short on reason. The case Horovitz tries to make for his appeal is based on a blatant refusal to acknowledge essential facts.
Let me stipulate that I am not trying to make a case for this government in general. A former Likud central committee member, I do not intend to vote for any of this government’s component parties. But on the particular topic of Horovitz’ editorial the government is upholding the proper prerogatives of the elected branches and the court, and Horovitz, are in the wrong.
Horovitz claims that this government’s legal and constitutional agenda is “to destroy the equitable rule of law.” This is false. If one examines the decisions this government has taken, in almost every case in which it is engaged in a dispute with the court it followed the letter of the law. An exception is the decision to require Knesset members to record their vote for the State Comptroller. In other cases the government has indeed followed the letter of the law. In passing an amendment to the Basic Law of the Judiciary the government followed the rules for emending Basic Laws the court itself laid down. In matters of appointment to offices which the law defines as subject to government appointment the government has followed the law. In the removal of the Attorney General, the government and the Knesset used their legal authority to change the method of dismissing the attorney general after the review body that the court insisted it use refused to convene on the issue. In appointing himself, with the complicity of a few of his colleagues, so-called Chief Justice, Judge Yitzhak Amit flouted the law. In an opinion Amit wrote – fortunately subsequently overruled – regarding the appointment of the Civil Service Commissioner, he attempted to take away the authority to make certain civil service appointments vested by law in the government and vest that authority in – himself.
Over the years, the Supreme Court has gradually shed all constraints on its authority. Under Aharon Barak, it extended the definition of “human dignity” to enable it to strike down almost any law. When that kind of procedure failed to justify what the court desired to do, it declare all “basic laws” constitutional in order to be able to strike down other legislation by the Knesset, even though the Knesset originally passed “basic laws” because it did not want to legislate a constitution. The court imposed a constitution on the country unilaterally, without asking the consent of a single lawmaker or citizen. When the Knesset acquiesced in this usurpation of power and used the procedures the court dictated to amend or adopt new basic laws, the court asserted ex nihilo its authority to judge and override the Knesset, without any justification in law and again without the consent of the people or its elected representatives.
In a democracy, law is made by the people’s elected representatives. Judges are not exempt from the authority of democratically elected legislators; they are supposed to apply the law as legislated, certainly when its meaning is unambiguous. A judge who sets the legislature’s laws aside, implicitly or, more recently, repeatedly, explicitly, unapologetically and in a partisan fashion, is an authoritarian who is abusing his position. He is, in fact, a rebel in a black gown. At some point, it becomes the responsibility of the duly elected government to acknowledge what is actually happening and end the judicial abuse of authority. Israel today is long past that point.
All the cases mentioned above did not involve the defense of civil liberties. They involve cases in which the people’s representatives in the Knesset and government attempted to determine the laws according to which the government is to be administered, or govern according to the laws already in force. To view this as anything but the exclusive prerogative of the people’s elected representatives is to do away with the essence of democratic government. The court has opposed or thwarted them. But the court’s record in the equal defense of civil liberties is no better. One need only mention this attorney general’s giving a pass to violent demonstrators who happened to support her own and the court’s illegitimate prerogatives; the court’s refusal to allow the government to appoint a prosecutor to prosecute the former military advocate general – other than someone from the State Prosecution, which as a body is suspected of complicity in her crimes. It is ironic that Horovitz describes this government as “corrupt” a week after the judges in Netanyahu’s trial recommended to the prosecution to drop the only charge against him that has any teeth. What is not in question, having been amply reported in the media, are the corrupt processes whereby the state prosecution browbeat and threatened witnesses against the Prime Minister, only to have those witnesses recant their testimony on the stand.
Horovitz appeals to the government to consider the emotions of the many citizens – far fewer today I believe than four years ago, other priorities having occupied our attention – who are upset at the government’s attempts at judicial reform. He ignores the larger number of citizens who view the role of the court over the past four decades as “a long train of abuses and usurpations, pursuing invariably the same object”- to deprive the people of the right of self-government and invest governmental authority in a small cabal who are sure that they know better than us how we should be governed. He is concerned only when he believes the ox of himself and his friends has been gored, and spares neither thought nor word for the just grievances of others.
This is not good enough. If the country is to resolve the crisis over Israel’s constitutional system, it must take into account the just grievances of all. Horovitz bemoans the lack of a constitution. We can recall, cynically, that the country was supposed to have a constitution, legislated near the beginning of the century by a handful of unelected people on the bench, only for it to be quietly consigned to the dustbin of history when it no longer served their purpose. Any legitimate constitution needs the consent of a broad consensus of the population and must be based on universally recognized principles of democratic government. Its legitimacy can only rest upon the ballot box, not the bench. Civil liberties and the right of people and communities to live their lives according to their lights must be established, and set beyond the reach of occasional majorities. This is an essential part of the laws courts must enforce. But this must be balanced by the right of the people to govern themselves, and the courts must be held responsible for applying the law as the people’s legitimately elected representatives adopt it.