One of the front-page headlines in Monday’s edition of this newspaper was very problematic: “Only three gov’t ministers pledge to respect court ruling.”
The headline was problematic not because there was anything technically or grammatically wrong with it; the headline faithfully summed up the gist of the story.
Instead, the concern lies with the news itself: out of the 33 ministers comprising this coalition’s inflated government, only three would commit publicly to following the High Court of Justice’s decision – come what may – in the hearing that begins Tuesday on the law to limit the reasonableness standard.
Even in these unhinged times when red lines are regularly crossed – when a former Mossad head gives ammunition to every anti-Israel activist in the world by saying outrageously that Israel is enacting “apartheid” in the West Bank, and when a haredi (ultra-Orthodox) MK slanders Zionism and charges that Zionists thwarted efforts to rescue Jews during the Holocaust (a horrific falsehood) – it remains astounding that so few ministers are willing to declare their intention to abide by the court’s decision on this matter.
Even more dismaying is that Prime Minister Benjamin Netanyahu is not among those three.
Netanyahu offers no guarantees
Netanyahu, who should be forcefully speaking out against ministers and MKs saying they will not listen to the court if its ruling goes against their wishes, has pointedly refused to say that he would obey the court if it strikes down this amendment to a basic law. Instead, he has suggested that if the court interferes with a basic law, it would exceed its authority.
According to this argument, it would not be the government violating the rules of the game if it disregarded a court decision in this matter; rather, it would be the court overstepping its boundaries.
But this is faulty reasoning.
Every game, including the game of governance, has rules. Some countries are lucky enough to have a constitution that sets the basic rules; others – like Israel – are less fortunate. Rather, the rules in those countries develop organically over time.
While it is crystal clear in the rules that govern Israel that everyone must obey the law, meaning everyone must listen to the court, there is no such clarity regarding whether the court can challenge a basic law.
This is a somewhat murky area. Just because the court has never done this before does not mean it is forbidden. In fact, if the court were prevented from striking down basic laws or amendments to them, then any government could pass any law it desired as a basic law, thereby precluding any judicial review. That situation, obviously, is untenable.Equally untenable is a government that does not listen to the court.
Not only is it untenable, it opens the door to anarchy, to a situation described in the Book of Judges where “everyone did what was right in his own eyes.” If the government does not heed the court’s decision, why should anyone else?
Democracy rests on several pillars, and one of its central ones is the supremacy of the law. If government ministers do not recognize the supremacy of the law, then there are no rules to the game, and if there are no rules to the game, then eventually, there may be no game at all.
Recognizing the law’s supremacy means doing so even when the law goes against you. Former prime minister Menachem Begin famously gave voice to this sentiment in 1979 when, following a Supreme Court decision that went against settlement at the time in Elon Moreh – something he believed in with every fiber of his being – he purportedly said, “there are judges in Jerusalem.” By this, he meant that there are justices in Jerusalem and that their decisions must be respected.
During a heated cabinet meeting after the court’s ruling, some members of Begin’s cabinet demanded that the government disregard the decision. Begin, however, adamantly disagreed, reportedly declaring, “The courts in Israel have made their decision, and the government is obligated to honor and carry out whatever they decided.”What was so clear for Begin should be equally clear to Netanyahu; what was true then is equally true today.