When under pressure, judges should not back off from doing their job

Usually political process, not courts, forces embattled PM to step down.

By
May 30, 2019 04:04
4 minute read.
Prof. Matthias Kumm [right] speaking at Israel Democracy Institute, May 2019

Prof. Matthias Kumm [right] speaking at Israel Democracy Institute, May 2019. (photo credit: MICHAL FATTAL)

When under pressure from increasingly aggressive executive and legislative branches, the judicial branch’s best option is to stick to its guns and simply do its job as it usually would, says a top US academic expert.

New York University Prof. Mattias Kumm recently spoke with The Jerusalem Post about the issue during a visit to Israel, where he made a presentation at an Israel Democracy Institute conference.

The conference highlighted IDI’s six-year study called “Proportionality in Public Policy: The Balance between Rights and Public Interests in Decision-Making,” and Kumm’s comments dovetailed with the same issues.

Kumm’s point was that, for maintaining democracy, it is important that judges press onward with exercising their authority, even if keeping their heads down to weather the storm might seem like a more attractive option.

Explaining the context, Kumm said that worldwide, there is a growing trend of political parties with quasi-authoritarian tendencies growing in power within democracies.

He said that these new trends and parties all have “something in common, some similar ways they attack the system and attack what would usually be assumed to be the basic understanding of constitutional law and democracy.” The common theme is “political authority being in direct conflict with constitutionality.”

Kumm explored “how courts should act and what options do they have... once the political battles are already lost,” presumably in an election empowering parties at loggerheads with the judicial branch.

The academic said that his research showed that “courts were not successful” when they tried to “become strategic actors and tried to retrench, back down... and go into a [metaphorical] bunker... to weather the storm.”

This retrenchment strategy, which some courts have tried, is based on the hope that “the storm will pass, and then they will be there to resume their proper function at a later time – this is a widespread tendency.”

He said that, instinctively, “courts are more modest on issues dear to the dominant powers.”

His problem with courts taking this passive approach to other branches making power grabs is that the courts cannot expect that they can wait out the leaders behind the antidemocratic changes in some systems.

Although in the US, the Supreme Court “can reasonably expect that the current administration will not be there... within four to eight years,” in countries like Hungary or Turkey, he said, the current rulers may be in power indefinitely.

Simply turning back the clock after a few short years of chaos is not always an option, Kumm said.

Urging courts to resist “the illusions they can save the institution by hunkering down,” he said this often just paved the way for antidemocratic political players to run ragged on the system and to change and harm it irreversibly.

Kumm admitted that there is no perfect answer for how courts could resist such political trends, as “courts are not the institution which will be at the center of recapturing” the system to move back in a more democratic direction.

“Courts cannot do that. They are unlikely to be the central actors of the drama,” he acknowledged.

However, he said that limitation “doesn’t mean they cannot take more productive stances. Courts are likely to do best if they simply do their job in a business-as-usual manner. They should not be intimidated by the political context.”

The advantage of continuing to issue regular rulings – even those that might anger the dominant political actors – is that their actions, especially if framed as business as usual, can “help motivate forces which can fight.”

Admitting that “this means a real danger that the court will be neutralized,” he said that “if the court doesn’t try to perform its neutral function, the likelihood of playing a constructive role and supporting political normalization is lower.”

At bedrock, his argument is that courts may be protected from being neutralized by public sympathy for the idea that “it cannot be wrong for judges to do what they were put there to do.”

NEXT, HE addressed the current impending crisis between the political and legal establishments in Israel, including the public corruption charges against Prime Minister Benjamin Netanyahu.

Prefacing that he is not an Israeli law expert, he said that “whether or not it is politically wise or unwise to have Netanyahu indicted simply is not an issue that should be weighed in how the court decides,” if the issue gets to its door.

He called disputes between the branches that involve the head of state “highly complicated. There is always an issue of immunity when it comes to ministers and the prime minister. There are countervailing principles.”

“True, once there is an indictment out there, there is a certain cloud over a prime minister, which plausibly restricts his capacity to fulfill his duties of office in the way he would normally... but there are tensions,” he said.

He said that using the law to oust a prime minister has its own risks of abuse and causing imbalances, and that normally, elections and other political processes are supposed to be the way to replace a head of state.

The idea of the judicial branch forcing out a prime minister is not even allowed in some countries, he said, and is always “a hard question.”

Finally, he said that if political processes are not resolving the issue, then “it is already a serious concern.”


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