Judicial activism? It depends who you ask

By YUVAL SHANY
June 26, 2019 19:35
4 minute read.
Judicial activism? It depends who you ask

Prime Minister Benjamin Netanyahu in the Knesset on the fateful night of May 29, when the Knesset dissolved itself and set September 17 as the date for new elections. (photo credit: MARC ISRAEL SELLEM)

 
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The “legislative blitz” which the coalition had planned prior to the calling of new elections, and which will almost certainly be on the government’s agenda following those elections, if Prime Minister Benjamin Netanyahu is reelected, is intended to turn back the clock; to undo the “constitutional revolution” of the 1990s, which allowed the High Court of Justice to revoke those laws passed by the Knesset that are deemed by the court to be in contravention of Israel’s basic laws; to do away with the reasonableness standard in administrative decision making that the Supreme Court began to develop back in the 1950s; and to restrict judicial review to cases brought by those directly affected by the reviewed measures only. In other words, the new government might take Israel back 70 years, as a response to the “judicial activism” that has purportedly stripped the government and the Knesset of their ability to govern.

The prime minister has tweeted recently that restoring equilibrium among the branches of government will allow the coalition to pass legislation enabling the deportation of the families of terrorists, enforcement of the death penalty for terrorists, and the deportation of illegal immigrants. By chance, or perhaps not, these three examples are all rather far-fetched. The defense establishment is opposed to deportation of families and to the death penalty; and in any case, the Knesset has passed no such legislation in the past that the Supreme Court has had to either approve or overrule. As for migrants without refugee status, the court has not forbidden their deportation from the country, but rather has ruled that the Basic Law: Human Dignity does not permit them to be incarcerated for an extended period of time without any realistic prospect of their being expelled from the country. In fact, the court actually authorized their involuntary deportation to third countries, but those countries refused to accept them under those conditions.

But is it even accurate to define the court as “activist”? The objective data do not necessarily support such a claim. Between 1995 and 2018, the Supreme Court revoked just 0.5% of the laws passed by the Knesset – only 18 out of some 3,000 laws passed during that period. When it comes to oversight of administrative decisions made by various governmental bodies (including ministries, municipalities, and public agencies, etc.), the rate of intervention is higher. According to a study carried out in 2017 by Prof. Barzilai, Dr. Rosenthal, and Prof. Meydani, the Supreme Court accepts petitions against the state in their entirety in 10% of these cases, and partially – in 3% of the cases. But even here, in six out of every seven cases, the court ruled in favor of the government.

IN FACT, civil society organizations and academics have been arguing for years that the Supreme Court is too conservative, tending to adopt the government’s position almost automatically, particularly on issues relating to national security and to the Jewish character of the state. Thus, for example, the court’s recent rulings on the demolition of terrorists’ homes, the denial of property rights in divorce proceedings to an “unfaithful” wife, and the denial of the right to marriage for single-sex couples have all drawn fierce criticism from liberal circles; and some human rights organizations even feel that petitioning the Supreme Court is not only useless but actually creates a false image of effective judicial review.

It is interesting to note that the court’s tendency not to intervene in governmental decisions also led it to adopt a lenient stance toward the restrictions on the freedom to demonstrate that were imposed by the Ariel Sharon government on opponents to the disengagement from Gaza – a position that was sharply criticized (in my opinion, quite rightly) by voices on the political Right. It would seem, then, that the question of whether the Supreme Court is too activist or not activist enough is in the eye of the beholder. Thus, those who argue in favor of a radical change in the balance of power between the branches of government bear the burden of proof that the existing situation does indeed prevent the government from governing and executing the policies for which it was elected. The examples put forward by the prime minister are far from convincing in this regard.

By contrast, it is clear that limiting the powers of the Supreme Court and divesting it of its authority to review Knesset legislation and the activities of the administration – an almost unprecedented step in the democratic world – will inevitably inflict real damage on the fundamental tenets of the rule of law, as it will make it exceedingly difficult to enforce the law on the government itself and to ensure that governmental policy is exercised within the purview of the powers conferred by the legislature. To the extent that the proposed changes facilitate the passing of legislation aimed to benefit one specific person – and indeed, it would seem that the main reason for the promotion of constitutional reforms at this time and at great speed is to shield the prime minister from legal proceedings – this will also inflict a fatal blow to the principle of equality before the law.

The writer is the vice president of the Israel Democracy Institute and a professor at the Hebrew University of Jerusalem Faculty of Law.

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