Another Netanyahu. This one a Supreme Court judge. What did she think of judicial reform?
Understanding the historical context for the current battle over judicial reforms is important.
Shoshana Netanyahu was a Supreme Court (SC) judge between 1981and 1993. Her parting gift to the nation upon retirement was an article called "The Supreme Court of Israel: A Safeguard of the Rule of Law." I believe it is of interest to see what was being written academically at the time the changes were being instituted and therefore I will summarize this article for readers. Those who want to see if I am true to what Netanyahu writes are invited to open the link to the entire piece.
Just to satisfy your curiousity -- Justice Shoshana Netanyahu is Bibi's aunt by marriage. Her husband was the mathematician brother of Bibi's father.
Because of Bibi’s familial relationship with Shoshana, let us look at his political positions during the time discussed by his aunt in her article. Bibi returned to Israel in 1988 after having served as Israeli Ambassador to the UN. He was elected to the Knesset and, until 1992, held various positions in government. In 1993, he became leader of the Likud and leader of the opposition. In 1996, he became prime minister for the first time.
The purpose of the reforms is to step back from the liberalization of the courts, a process largely under the influence of Justice Aharon Barak. In 1978, Barak was appointed to the Supreme Court and became its President in 1995, a position he held until retirement in 2006.
After an introduction, Netanyahu discusses two issues that Justice Aharon Barak revolutionized in Israel: standing and justiciability. Then she has two further sections: (1) rule of law and the attorney general; and (2) rule of law and politics, followed by her conclusions. I will present the conclusions first and then provide a summary of her discussion of the relevant issues.
Justice Shoshana Netanyahu's Conclusions
This is 1993, remember -- just one year after the passing of the two basic laws (1 - Human Dignity and Liberty and 2 - Freedom of Occupation) that, according to academics, opened the court up to a revolutionary change in the way it functioned. Netanyahu writes:
The concept that the High Court's role is to resolve disputes has given way to the concept that its role is to safeguard the rule of law. In the name of the rule of law, the Court became actively involved in matters of political character from which it had recoiled before, more actively perhaps than courts in other countries.
At the same time, she claimed that the changed interpretations of standing and justiciability has not flooded the courts with applications for adjudication as might have been feared. And,
. . . the public's respect and confidence in the Court seems to have been enhanced. I would like to think that we have satisfied at least some of the public's high expectations. We are being sensitive to the public's feelings and views.
"We are aware," she continues:
. . . of the public's disillusionment with the political systems, and of the reasons that are responsible for this. It was in response to this state of things that the Court overcame its reluctance and, in full responsibility to the public, rose to the need to restore faith in the country's constitutional institutions.
Her final statement is this:
Professor Zamir, a Professor of Administrative Law at the Hebrew University of Jerusalem, wrote recently that the Court has thus far proceeded in this field with caution and wisdom." May it be able so to continue.
Professor Zamir, the SC Justice Yitzhak Zamir, wrote this in 1991. Apparently, in 1993, when Netanyahu retired from the court, there was still room for optimism. But the fact that she writes "May it be able so to continue" hints at the possibility that the court may not continue to proceed with caution and wisdom. I will leave this discussion for another time and just continue by providing a summary of her discussion of the relevant issues with no editorializing on my part.
Netanyahu's Introduction
She writes that the court has the respect of the Israeli public and is viewed as an objective protector of the citizen when in dispute with the government. And, she says, there has been a movement away from the court adjudicating disputes between the citizen and the government toward the court safeguarding the rules of law. In other words, from a particularist sphere of activity to a general public domain of activity. This has made the court more open to liberal interpretations of its role both because, she says, the public has lost trust in political institutions and because of the movement of a younger generation of jurists toward the American constitutional concept of the courts. Two concepts are relevant here: standing and justiciability.
Standing
Netanyahu outlines the court's growing liberalization of the issue of standing. The law is vague, she says, and at first standing was understood to pertain only to someone personally affected by a public institution. This gradually changed and the Ressler case is cited as demonstrating that change. In 1970, attorney and reserve officer Ressler petitioned the court against the Defense Minister, claiming that the practice of deferring army service for yeshiva students prolongs his own reserve service. His petition was denied on the basis that, it being a political issue, he had no standing to bring it before the court. It was rejected on the same basis of lack of standing when he tried again in 1981 and 1982.
However, when he submitted the same petition in 1986, the court accepted his standing (and he lost the case on its merits). The issue of standing had progressed from needing to show corruption to claiming the existence of a grave defect and from needing to show a constitutional problem to it being sufficient to show that the petition concerns an issue of public concern. Netanyahu writes:
This is a far cry from the position of the Court in 1970 in the first military deferment petition, according to which the more public and political the character of the subject matter of the petition, the more strict the Court would be on the standing of the petitioner, requiring infringement of a private right. [emphasis added]
She concludes that the issue of standing fell to the
'expert feel' of the Justices to filter the petitions and discern those deserving from those non-deserving of standing, to distinguish between a publicity seeking petitioner and a petitioner motivated by a bona fide interest in the rule of law.
She mentions that Justice Shlomo Levine criticized the liberalization of standing, saying that the court should not police political institutions; he suggested establishing a separate authority that would receive complaints from the public regarding "serious breaches of law by the authorities" and only particular cases would be brought to the court.
Netanyahu says the seed was planted by Ressler and what was once unthinkable is now ("now" being in 1993, when she wrote the article) common practice as the court rarely questions the standing of the petitioner before it.
Justiciability
Justiciability depends upon the answer to two questions. Firstly, is the matter one for which legal arguments can be brought to bear on resolving it? And secondly, is the court the proper venue for this?
Netanyahu argues that "everything is a legal matter in the sense that the law takes a position as to whether it is permitted or forbidden." This also applies to political issues "because 'political' matters may at the same time be 'legal' matters, even if the legal standards differ from issue to issue.
The Ressler case served as a precedent regarding justiciability just as it had for standing. The court was mixed in determining whether they should enter a politically charged issue or refrain from it, feeling that by entering the fray they are protecting the idea that there needs to be balance between majority rule and individual rights but they may, at the same time, be giving the public the idea that the court has become politicized. Netanyahu writes:
. . . even when the Court deals with political issues, it does not examine them by political standards or standards of political wisdom, but by legal standards. There could, however, be a subjective ground. The public may not distinguish between judicial review and political review. It might identify the legal decision with a political position. [emphasis added]
The Deputy President of the SC in the Ressler case disagreed that everything is justiciable and did not accept the idea that reasonableness is applicable to every case. Netanyahu writes that he "questions whether there is a point in even posing the question of how a reasonable political party would have acted under the circumstances."
Rule of Law and the Attorney General
The Attorney General (AG), the head of the criminal justice system, is not above the law. AG decisions can also be reviewed by the courts. At first, the only measure for criticizing decisions on whether or not to proceed with police investigations was based on the ground of bad faith. This grew with time to include arbitrariness and ulterior motives. By the 1980s, it had expanded to include whether or not the decision was reasonable. In fact, AG's have been instructed by the court to prosecute cases they had decided not to prosecute and vice versa.
Rule of Law and Politics
Netanyahu states that Basic Law: The Judiciary gives the courts the jurisdiction to rule on actions of the Knesset similar to other public bodies. She discusses the fact that not all judges thought it wise to do so."The problem," she writes, "is not a problem of jurisdiction but of discretion."
The Knesset has a quasi-judicial function when the Knesset House Committee rules on whether or not to remove the immunity of a Member of Knesset (MK), for example. Until 1981, there was no interference in the workings of the House Committee; the court limited its discussion to whether or not the Committee had exceeded its authority in ruling on suspending membership. But by 1985, the court did interfere and in one case, for example, it determined that the evidence did not show that the MK presented a future danger and suspension from the Knesset could not be based on past behaviours, however despicable they may be.
The court began to intervene in internal Knesset interactions after 1981. They ruled against replacing a committee chairman and against fixing a date for a no-confidence vote, stating that these actions deviated from Knesset rules as stipulated in the Basic Law: The Knesset. In addition, when the Knesset Chair refused to allowed Kach to table a racist bill, the court determined that if a party has been elected to the Knesset its MKs have the right to table bills consistent with the party platform. Netanyahu writes:
Later, after an amendment of the criminal law prohibiting racist activities, the faction was debarred from the elections. Its [the party's] only impact on Israeli public life is its contribution to the development of our constitutional law.
In the 1990s, the courts increasingly entered into political issues and compelled political parties to make their coalition agreements public knowledge when there was concern that they were engaging in "shady political bargains with the small parties without which none could have a majority to form a government." Another case involved a Likud central committee member requesting that the SC nullify a coalition agreement (involving his own party) that he claimed was illegal and contrary to public policy.
Academic writers refer to this case (Zerjevsky vs the Prime Minister, 1991) but do not discuss it. I searched for the case in the Hebrew archives and skimming the 96-page document shows that the judges discussed the legitimacy of adjudicating this clearly political case. It seems worthy of future closer examination as it appears to me to be where the involvement of the court in politics began.
Netanyahu writes that the SC Deputy President was strongly opposed to such intervention:
He stressed that by the concept of separation of powers the Knesset is responsible to the people. It is the people who will judge it on the judgment day of the elections - but not very likely in our political culture, many will say. The Court should exercise more self-restraint toward the Knesset and leave it free to its business without interfering with its regular and efficient functioning. In this the Deputy President is in the minority.
And after this, Shoshana Netanyahu wrote her conclusion, ending with the hope that the SC would use caution and wisdom in intervening into the political realm.
My only editorial comment: I think a lot of people in Israel — in the justice system, the legislature, the cabinet, and the population as a whole — could do with using caution and wisdom in all areas of public life.
I wonder what Justice Netanyahu would say about what is happening now with respect to judicial reform.
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A political system that relies on officials always acting with wisdom and caution at their own discretion contains the seeds of its own destruction. Political systems need built-in checks and balances so that the different parts of the system can hold each other accountable to act with caution and wisdom.
This article and your link to the Pace Law review piece by S.N. you provided are extremely helpful. I find it interesting that both the U.S. and Israel are having to come to terms with the function of each branch of government (in this case legislative and judicial).
For such a time as this you provide some much needed information and education and I am grateful.