How the Supreme Court of Israel Should Consider Its Powers

As protesters continue to take to the streets in Israel, denouncing a law passed Monday by the right-wing government to undermine the powers of the country’s courts, Israel’s Supreme Court is facing an important decision: What should it do to challenge its powers?

The new law limits the grounds that the court can use to overturn government decisions. Yet soon after it passed, petitions asked the judges to do the same, by striking down the law itself.

Analysts said the court has three options: 1) violate the law; 2) gradual interpretation to eliminate its influence; or 3) not being selective in refusing to hear the requests.

The law was passed by the Knesset, Israel’s parliament, as part of Prime Minister Benjamin Netanyahu’s government’s grand plans to reform the courts by overseeing the way judges are selected and removing the courts’ powers to review other cases.

Critics say the law, as well as the general plan, is an attack on democracy because the courts are the main check on the Knesset and the prime minister in Israel’s parliament. Netanyahu and his allies defend the law as a safeguard for democracy, a necessary way to prevent judges from interfering with voters’ decisions.

Any decision by the court – including the refusal to hear objections to the new law – has an effect on the wave of protests, and against those who support the law, that are going around the country.

Adam Shinar, a law professor at the Reichman University in Herzliya, Israel, said: “If the court rejects the petitions, it would lead to the end of the protests” by preventing the change of the courts. “But if the court is doing things against the government, this will increase the opposition. So you have all these political views. “

Law and politics collide when the Supreme Court faces a major case challenging its authority, some analysts said.

“In the context of this transition, it’s not clear what the courts should do,” said Kim Lane Scheppele, an anthropologist at Princeton University. “There are two theories. One is for the court to pay back the government more. But this would risk confirming the idea that the court is not in control. So another theory is that the court should be careful and follow the law to show that the criticism is exaggerated. And maybe this causes the government to stop. “

But in Israel judges have never faced such a problem from the government.

Monday’s order says the court can no longer use the constitutional standard of “consensus” to interfere with federal decisions. It was established as an amendment to Israel’s First Law, which the judges never violated.

Israel was founded in 1948 without a constitution. Ten years later, the Knesset he started giving laws called Basic Laws, first describing the power of the country’s governing bodies. Originally, Basic Laws, which could be passed by members of parliament, were not necessarily superior to other laws. Then in 1992, the Knesset enacted the First Law which guarantees dignity and freedom. Supreme Court Justice Aharon Barak, one of the country’s most prominent judges, declared that “the law has changed,” and the court established the authority of the Fundamental Laws and gave judges the power to interpret them.

Since then, the court has established ways to destroy the Basic Law without doing so, legal experts say. “For example, the court said that it can destroy the First Law if it interferes with the main status of Israel as a Jewish and democratic state,” said Professor Shinar of Reichman University.

If the judges do not want to violate the First Law here, they can narrowly define the limits of the standard of reasonableness using another standard that they have created – for example, “balance,” or evaluate the connection between the means and ends of the law and its costs and benefits.

“Equality is a fair test,” said Rivka Weill, a law professor at Reichman University. He added: “It is not as if the government has removed all investigative powers.”

The petitions currently in court challenge the law clearly, so judges may refuse to hear the cases, and wait for a permanent trial to be approved. One such case could happen if, as Netanyahu’s critics fear, the government tries to replace the chief prosecutor, Gali Baharav-Miara, who is overseeing the prime minister’s trial in an ongoing corruption case.

Mr. Netanyahu has rejected any plan to interfere with him. But if the government removed Ms. Baharav-Miara, “it would cross a red line in court,” Professor Weill said. In the same way, a law will be passed to give the government power over how judges are appointed, he added.

He added that: Any event can provide the court with clear principles to consider the termination of the standard of tolerance, which can be its usual tool to review the dismissal of a public servant or the change in Israel’s checks and balances.

Earlier this year, the court angered the opposition by saying that it was inappropriate for Netanyahu to appoint Aryeh Deri, a long-time Orthodox politician, to his cabinet because Deri had recently been found guilty of tax fraud.

“It’s hard to explain in a non-technical way why the prime minister’s actions here are incomprehensible,” said Professor Scheppele, an anthropologist at Princeton. “This term seems vague in common usage, although it is a clear and well-established doctrine that other countries like Britain also use. And you may ask, why should the courts tell Netanyahu who he can have in his government?”

In other countries, the check that shows that the head of the governor has the power to choose his ministers, does not come from the courts. For example, in the United States, the House of Representatives has the power to confirm the people who are elected president.

But the comparison is unfair, said Professor Scheppele. Israel does not have the checks and balances of American behavior. The country does not have two houses of Congress that can close each other, or a clear separation between the executive and legislative offices, or a federalist system of states or regions that have great powers.

The weakness of Israel’s checks and balances explains why judicial independence was so central to the conflict. It also means that the court can do more to preserve its power.

“You get to the point where legal interpretation ends,” said Professor Scheppele. “The court cannot correct the error in interpreting the First Amendment” if the government continues to undermine the court or try to fill it with new judges. “When there is a threat to democracy, you have to win elections and change the law.”

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