When the Supreme Court wants to strip the state of strategic assets, the government must stop the court’s interference. History shows it has happened in other democracies as well.
The Security Cabinet’s decision recently to not return the bodies of terrorists, for now, and to continue using them as a bargaining chip against Hamas, could mark a new period in the state of governance in Israel.
The issue is much broader than Israel’s strategic position vis-a-vis Hamas. It touches on the strategic balance between the Israeli branches of government. This issue and the Cabinet’s decision, has the potential to remove the Courts and its emissaries from the anti-democratic positions of power they have taken on in recent decades.
The solution to the governance crisis that the State of Israel is facing is by defying the Supreme Court. Saying this leads immediately to a Pavlovian condemnation of the violation of the rule of law that such a position implies. However, the opposite is true. The ruling on the return of the terrorist bodies is clear proof of the loose connection between the written law, as legislated democratically by an elected Knesset, and the interpretations of the court.
With the principle that this court ruling dictates (and a previous ruling on the revocation of Israeli citizenship of Hamas representatives in the Palestinian parliament), judicial activism is, in effect, illegal.
The law, as it is currently worded, authorizes the army to bury enemy bodies in a temporary grave. Israel used this authority in order to hold on to the bodies as a bargaining chip. According to the absurd majority opinion in this ruling, this is not enough: the law needs to include explicit authorization to use the bodies of terrorists for bargaining.
So in the same sense, Israeli law does not authorize the court to annul laws. “Basic Law: The Judiciary” grants the Supreme Court authorization to discuss “matters that it deems necessary to provide judicial help and which are not within the jurisdiction of another court or tribunal,” but it does not allow for the cancellation of laws. Even without a ruling on the bodies of terrorists and Hamas representatives, there is a claim that the cancellation of laws by the Supreme Court is illegal. However, these verdicts, which demand explicit authorization down to the most minute detail, pull the rug out from under the entire law abolishing authority, one of the strongholds of the judiciary, in the war they have declared on the Israeli democracy.
The Two Bad Alternatives
What can the government do when the court rules in opposition to the law? Until now, the conversation around the terrorist verdict has settled around two alternatives:
One is to amend the law so that includes explicit authorization to use bodies as a bargaining chip. This is a bad solution because its basic assumption is that the Court was right in how they interpreted the law. After the mistaken verdict, entering into a legislative process is mistaken to the same degree and will immortalize the Court’s damage to Israeli democracy.
The second solution, and the one that was eventually adopted by the government, is the demand for a new hearing in the court. Within this solution is recognition of the authority of the court to deal with these matters, an authority that should not be assumed. If the expanded composition of the Supreme Court justices will come to their senses and decide to uphold the law in the updated ruling, the issue will apparently end in a tie. But the government must prepare for the possibility that in the retrial of the case, the court will still prefer to strip the country of its strategic assets for no legal reason.
The government therefore, has three options: To legislate – a problematic solution for the reasons detailed above; to obey – neglecting Israel’s security and recognizing the Court’s supremacy over Israeli democracy; or to disobey.
Limits to Disobedience
When dealing with disobedience to the court, one must first draw a clear line: the right to disobey is reserved only for the government and is not for private individuals. There is much to be done to improve the way courts handle civil disputes and criminal offenses, but this system, for now, is still functioning. When a private person stands before the court, he can still expect fair treatment.
On the other hand, the right of elected officials to disobey the court does not stem solely from the fact that the court in Israel has gone off the rails with regard to its authority regarding public policy. It derives from the ultimate source of authority: elected officials have received authority from the public to govern and make decisions on their behalf. Not the judges. Therefore, in exceptional cases in which judges exceed their authority and impede elected officials from fulfilling their policy, elected officials are permitted to defy them.
When Israelis hear the proposal to defy the court, they are filled with anxiety. In reality, the doctrine of disobedience has deep roots in the world’s most vibrant democracies.
The first time the court in a democratic country abolished a law was in 1830. President of the United States Supreme Court, John Marshall, sought to repeal a law to cruelly transfer Native Americans living along the East Coast. The problem with the verdict was that it collided head-on with the democratic decision of American citizens which is why in the 1828 elections Andrew Jackson won a second term.
The main question in these elections was how to deal with the Native Americans, who embittered the lives of Americans spreading terror in their towns. For decades, the Americans tried to treat Native Americans as if they were organized into independent countries, but the long-awaited peace was not achieved (it is hard to blame the Native Americans for this, but that is not the point in this article). In the 1828 elections, Jackson ran on a platform based on the forced transfer of Native Americans and won the election.
As the story goes, after the verdict, Jackson declared “John Marshall has made his decision; now let him enforce it!” This statement has since been proven apocryphal, but it does not matter in terms of the result, as the transfer of the Native Americans was carried out unequivocally. Tens of thousands of Native Americans were forcibly evicted from the hunting grounds where they were forced to migrate westward of the Mississippi River.
The transfer, which remains in the American consciousness as the “Trail of Tears,” remains a controversial move morally. However, the important point is that the court ruled, and the president did not comply.
The principle was finally settled 31 years later, in a ruling called Ex parte Merryman. With the outbreak of the civil war, Abraham Lincoln invented the concept of administrative detention, that is, detention without trial for security purposes. One of the rebels arrested under the new procedure, John Merryman, petitioned the court to release him. The Court’s Chief Justice, who inherited his position from Marshal, Roger Taney, accepted the petition and ordered the release of Merryman. Lincoln did not obey. Taney, in response, sent a group of Marshals, a kind of court’s guard, to take Merryman by force from jail. Lincoln then sent soldiers from the Northern Army to fight the marshals and keep Merryman in prison. At the last moment, Taney folded and the marshals retreated, but this does not take away from the drama. At the heart of the American Civil War, the judiciary and the US executive were on the brink of an armed battle.
Taney’s hesitation fixed the status of the court until today, a court ruling is always important, but not always considered. From time to time, the president and the congress do not obey the court. In 2013, Obama berated a federal court ruling requiring him to dissolve a state commission he appointed.
In 2006, Congress passed a law authorizing the president to veto budget allocations after the same law was repealed by the Court in 1998.
In 1983, the Supreme Court tried to compel the US government to leave an illegal resident named Jagdish Chadha in the United States, but Congress did not comply with the decision. There are many other examples.
The French Connection
The phenomenon of disobedience appeared in a big way in France as well. Before 1962, the French president was largely without authority, like Israel’s President Rivlin today. One of the powers in his hands was the technical operation of the electoral mechanisms and referenda, including the distribution of polling stations, their operation, counting of votes and publication of results. According to the constitution in force at the time, in order for the president to call for a referendum, he must receive an order from one of the two Houses of Parliament. In addition, a constitutional amendment required a referendum.
Charles de Gaulle, who served as a figurehead president, did not like his situation and enjoyed popularity. The public wanted to give de Gaulle executive powers, and de Gaulle was certainly interested in them, but the Parliament did not want to amend the constitution to give them what they wanted. However, with the referendum mechanism in his hands, de Gaulle activated it without waiting for instruction from parliament. He launched a referendum with regards to the expansion of the president’s powers and his becoming an executive president, as in the United States.
A number of Parliament members appealed to the French Court of Cassation (which is made up itself of Senate members), and unsurprisingly the Court ruled that the referendum was illegal and told de Gaulle to cancel it. De Gaulle protested, the referendum was held and the results supported De Gaulle’s position with a 62% majority.
The same parliament members once again appealed to the Court demanding to cancel the results of the referendum and the answer of the Court should be learned well by Israel’s judges. The judges bent to the wishes of the people, not the opposite.
Indeed, the referendum was illegal, but it was appropriately run. There were no claims of fraud and bias, and the people made themselves heard clearly.
Under these conditions, the fact that the referendum was illegal at its start became an unimportant technicality. The cancellation of the results of the referendum would have denied the fulfillment of the will of the people in an anti-democratic way.
Disobeying the courts also has a precedent in Israel. In 2003, MK Michael Gorlovsky was caught on Channel 33’s lenses voting on the Regulation Bill from the seat and in the name of the MK who sat next to him. Gorlovsky immediately admitted what he did, apologized before the Knesset and took harsh sanctions from the Ethics Committee.
When the Attorney General wanted to remove his immunity, the Knesset Committee refused to comply because, among other things, he took responsibility and was sanctioned. The Movement for Quality Government in Israel appealed to the Supreme Court against the Knesset’s decision. The Court accepted the appeal and returned the decision to the Knesset Committee in order that they would now make the only correct decision, removing Gorlovsky’s immunity.
The committee met again on June 1, 2005 and decided to defy the Court. Beyond the historic decision, the points made by the members of Knesset were incredibly poignant and were evidence of the Knesset members’ awareness of the importance of their decision.
“Assuming that the committee will again vote against the attorney general’s request, in light of the Supreme Court’s ruling and in view of the attorney general’s renewed request to the committee, will we not face a constitutional crisis?” asked MK Zahava Galon. “It will now return like a ping pong ball between the Court and the Knesset God forbid,” warned MK Dani Yatom.
“The Supreme Court casts its entire weight and opposition on the legislature. If this back and forth is not the test then when is the test?” asked MK Ehud Yatom. “We make laws and decisions and here the court is cancelling them…This is another point of tension that needs to be clarified and this is an opportunity to clarify it” said MK Yitzchak Cohen.
MK Michael Ratzon summarized: “It is the right of the Court to have its say, but it is the obligation of the Knesset Committee to also have its say, without regard for the Court’s decision. The whole time we have been debating the question of what the Court said. This does not need to concern us. We need to make a decision as the sovereign in Israel…The Court can say what it wants, the Knesset Committee will say it wants…The committee cannot weigh at all the opinion of the Court. It must not because of the principal of the separation of powers.”
History shows, therefore, that the government and the Knesset has the option of disobeying the court. It is well anchored in the legal tradition of the West, and even in Israel it has precedent. It is the elected officials who will decide the appropriate cases to take this step, which should be reserved for exceptional cases only.
However, if the High Court continues to refuse to recognize the clear language of the law and once again tries to prohibit the army from holding bodies as bargaining chips, then it would be time for the government make clear the limits of the Court’s power.
(Translated from Mida.org.il Hebrew)
Ziv Maor is the Editor of Mida Online magazine
[Find this article interesting? You can find more in depth articles on Israel and the Middle East @en.mida.org.il]