Will the new health minister play a name game with the High Court?

It seems the High Court views the problem with a deputy minister as minister as an inherent contradiction to the meta or organizing constitutional principle of reasonability.

By
November 29, 2017 07:51
3 minute read.
Will the new health minister play a name game with the High Court?

Ya'acov Litzman. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

 
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A centerpiece of resolving this weekend’s coalition crisis was a new bill that will permit Haredi lawmakers to wield the full authority of a minister even as they only retain the title of deputy minister.

The arrangement was already declared unconstitutional by the High Court of Justice in 2015. So the idea behind altering the Basic Laws on the powers of ministers and deputy ministers this time was to keep the High Court out of the issue.

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Will it work? Probably not.

The punch line is that when the High Court vetoed the arrangement whereby Haredim (ultra-Orthodox) used the deputy minister title, but acted as ministers, it did so with a 5-0 vote in a unanimous effort to slam the door on the idea for all time.

Why was the High Court so adamant in its opposition to a custom the government has called “time-honored,” dating back to David Ben-Gurion holding multiple ministry portfolios, but letting deputy ministers run much of the day-to-day operations? It turns out that the tradition of using the deputy minister role as subterfuge is not the only baggage that comes with this issue.

In its 2015 decision, in which the court declared that deputy ministers acting as ministers was unconstitutional, several justices wrote with unusual emotion. They were annoyed that their 2009 “warning shot” to the government telling it not to continue the arrangement had been ignored.

In other words, already by 2009, the High Court had said it was letting the arrangement continue one last time, but that the government would act at its own legal peril if it tried the arrangement again.



In High-Court speak this is as loud a warning as you get.

By 2015, the justices were so miffed at being ignored that they not only vetoed the arrangement, but they also told the government, in advance, that they would not allow then-deputy minister Ya’acov Litzman to even become a regular, lesser deputy minister – lest there be any question about his status.

Of course, the general basis on which the High Court cited its veto in 2015 was the law regulating the powers of ministers. And so Prime Minister Benjamin Netanyahu promised the Haredi parties that he would change the law to formally allow delegating powers to deputy ministers.

This could mean that the High Court would no longer have a basis on which to take issue with the deputy-minister- as-minister arrangement.

The High Court at the time also seemed especially troubled by the fact that the minister- in-name was Netanyahu, with all of his unique duties as premier.

It is possible the court will be less disturbed by a less preoccupied minister-in-name who, at least theoretically, could attend to the many needs of the Health Ministry better than Netanyahu.

But the High Court also discussed in its opinion the concept of the “public good.”

It framed that issue in terms of the average citizen needing to know who is ultimately responsible for some of the life-and-death issues decided by the Health Ministry.

It seems the High Court views the problem with a deputy minister as minister as an inherent contradiction to the meta or organizing constitutional principle of reasonability.

That means it is unlikely to let the arrangement be implemented even if a new law is passed authorizing the change.

There is still a chance that by the time the issue comes up, the ongoing changes in 2017 and 2018 of moving the court more to the Right, combined with a change to the Basic Law, may lead to a different vote.

But even this is unlikely, as the last vote was 5-0 and included Justices Elyakim Rubinstein and Neal Hendel, both of whom are considered more to the conservative side of the court. In other words, neither judicial liberals nor conservatives like this arrangement.


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