Naftali Bennett against the Supremes

Bennett is on a witch hunt. He accuses the Honourable judges of the Supreme Court of Israel being overbearing and presumptuous enough to act as a government [an unelected one to boot] on top of a duly constituted government by disallowing laws passed by the Knesset.

He argues that, “Over the past 25 years, the Supreme Court has radically encroached on the government’s authority to govern…Time and again it cancels bills the Knesset legislates. When you want to expel a terrorist who murdered, they say you can’t. When you want to take key security steps, they cancel them. When you want to pass tax bills, they stop it.” “..[it is] important that the voters get to select their government without it getting overruled…The Supreme Court should defend human rights when they are extremely damaged or when there is tyranny, but they turned themselves into a second opinion authority…I’ll remind the Supreme Court that Israelis elected a government to govern, that’s our job, and if they don’t like the way we do it, they’ll replace us. This change is overdue.”(The quote is from Gil Hoffman’s article in the Jerusalem Post of April 24)

By way of preliminary observation, without going into the nitty gritty of the law, in Canada the Superior Courts of the Provinces, the Federal Court and on final appeal the Supreme Court of Canada have the power to disallow laws or specific provisions of  laws, duly enacted by  Parliament and the provincial legislatures. In the United States, the courts and ultimately the Supreme Court can do likewise. For example, since the election of President Trump the Courts have been busy disallowing a number of Presidential Orders. So do the courts of numerous other Commonwealth countries such as the United Kingdom, New Zealand, and Australia.

And the skies have yet to fall on any of these countries.

One presumably can make the arguments marshalled by Bennett against the Supreme Courts of last resort of all of these countries. But no one in his/her right mind whether legal scholar, legal practitioner or  the citizenry on the whole, save for the rednecks, anarchists , totalitarians and G-d knows what other queer fringe group would advance them.

Again by preliminary observation, the Supreme Courts that declare laws to be ultra- vires, inoperative in part or in whole, do not encroach on the government’s authority to govern, they simply insure that the authority to govern is exercised in accordance with the constitution and the laws of the country.

Unless, the Supreme Court Judges of Israel are simply flying by the seat of their pants, making the law as they go along without reference to or without   properly interpreting of the existing written and unwritten laws in accordance with well-established legal principles and rules, the rule of law in a democracy imposes upon the government the duty to comply with the decisions of the Supreme Court, even if the government disagrees with the decision. Naturally, it is proper for the government to propose and for the legislature to enact remedial laws provided these are also within the law.

After all, judges are human and as we say: Errare humanum est.

Again, Bennett’s proposition that “… [it is] important that the voters get to select their government without it getting overruled” is pure sophistry.

In Israel voters do not select the government. In fact, they do not even select their members of the Knesset. They vote for a party, which as is the chronic case in Israel, that never gets enough seats to form a majority government. What the voter can best hope for is for his party to win the largest number of seats so as to be able to form a coalition with members of one or more other parties whose ideologies are agreeable to the voter.

Where this is not possible, it’s the voter’s tough luck. And when a coalition the latter government is formed, his or her ultimate hope is that the minority coalition partners will not force the government to enact laws which the voter finds morally, culturally and/or legally objectionable. In those instances, the Supreme Court becomes the voter’s last resort to have law set aside in part or in whole.  Whether the Court does that is another matter.

Hence, ultimately in a democracy governed by the rule of law, the Courts are there to protect the citizenry from the government that enacts legislation that is discriminatory in the negative sense of the term (in contrast with being discriminatory in the sense of sanctioning an affirmative action), arbitrary, abusive, oppressive and breaches well- established legal principles and precedents and/or personal and collective rights.

What Bennett is proposing is to demote the Supreme Court to a tribunal of human rights, of sorts but only “to defend human rights ‘when they are extremely damaged’ or when there is tyranny.”

This proposition boggles the mind:

First, it is not the job of the Supreme Court to defend citizens’ rights but to insure that the government respects citizens’ rights and those they are treated in accordance with the rule of law.

Second, it is the duty of the government to defend and uphold not only human rights but all the rights and entitlements of the citizens and their families in every sphere of their lives governed or affected by the laws of the land.

Third, the notion of defending human rights only “when they are extremely damaged” is egregious. A human right does not operate by percentages. As the colloquial expression goes: “A woman cannot be half -pregnant”. A human right is a human right and when it is breached under the law, the Courts are there to remedy the breach. The notion of intervening only when it is extremely damaged” is revolting.

In effect what Bennett is saying that the government is entitled to breach and damage a person’s right with impunity so long as it  the right  is not extremely damaged. And who is going to determine whether a right is or is not so damaged? I presume he expects the Court to take the government’s word on it.

And what about, the second task which Bennet assigns to the Court; namely to defend rights when there is tyranny? Bennett got this the wrong way around. The Court is not there to deal with tyranny but precisely to prevent tyranny by insuring that the government through does not engage in tyrannical legislative behaviour in keeping with the fundamental principle of a free society where the inhabitants live “under the law and not under men.”

The power of the government to disallow the decisions of the highest court of the land is a major step towards the establishment of an authoritarian regime.

At this juncture I do not have on hand the summary statistics of the Supreme Court of Israel in disallowing legislation. While I am waiting for the summary figures, I am prepared to wager that the Court has disallowed more legislation under the successive Likud led coalitions than at any other time in the past 25 years.

I just received some statistics published by Israel’s Movement for Governance and Democracy for the period 1997-2017. And they confirm my hypothesis. During this period, the Court disallowed a total of 17 laws: 12 during the Likud coalition (2012-2017); just three during the tenure of the late Ariel Sharon’s government (2002-2006), and merely two during Barak and Netanyahu governments (1997-2001).

I submit that the kind of reasoning demonstrated and the arguments put forth by Bennett, of all things a Minister of Education no less, provide the soundest and strongest arguments to oppose, at all costs, the enactment of the bill that proposes to abolish the disallowance powers of the Supreme Court of Israel. And this is particularly  the case when the Minister  hold the government hostage  to its demand by threatening to  break up the coalition and force the taxpayers to foot another expensive bill for an election  that need not be held.

Bennett said: “I’ll remind the Supreme Court that Israelis elected a government to govern, that’s our job, and if they don’t like the way we do it, they’ll replace us. This change is overdue.”

If Bennett prevails, he is right, the change of government will be overdue.

And, if Netanyahu refuses to give in to Bennett and such an election is held, and makes this an election issue, I predict that Netanyahu will prevail by even a bigger number of seats.

About the Author
Doğan Akman was born and schooled in Istanbul, Turkey. Upon his graduation from Lycee St. Michel, he immigrated to Canada with his family. In Canada, he taught university in sociology-criminology and social welfare policy and published some articles in criminology journals After a stint as a Judge of the Provincial Court (criminal and family divisions) of the Province of Newfoundland and Labrador, he joined the Federal Department of Justice working first as a Crown prosecutor, and then switching to civil litigation and specialising in aboriginal law. Since his retirement he has published articles in Sephardic Horizons and e-Sefarad and in an anthology edited by Rifat Bali titled This is My New Homeland and published in Istanbul.
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