Wednesday, November 01, 2006

Judicial Tyranny in Israel

Today in Israel the true power is the Supreme Court, not the Knesset and the not the Prime Minister. A perfect example is the Court's actions in the case of the President. The supreme court gave President Moshe Katsav one week to explain why he has not stepped aside as he faces a possible rape indictment. The only problem is that the law explicitly states that the President is not answerable to the courts and in fact, the law provides him full immunity. Here is the text of the law:

לא ייתן נשיא המדינה את הדין לפני כל בית משפט בשל דבר הקשור בתפקידיו או בסמכויותיו, ויהיה חסין בפני כל פעולה משפטית בשל דבר כזה

The President will not appear before the courts on any matter that is related to the fulfillment of his office or duties and he will have full immunity from any legal action relating to this (my translation).

The law could not be clearer that the Courts have no power over the President. Does that bother the Supreme Court? Clearly not, they still ordered him to respond why he didn't resign. In any other country the court would have thrown this out. The following quote is a perfect example of the attitude of the Supreme Court (Legal Analysis / Digging in, not relinquishing):

the High Court can express its moral-ethical position on the matter at hand, even if it rules that the president has immunity against any order whatsoever.

Who appointed the Supreme Court the moral and ethical arbiters of society? What makes them any more qualified to offer moral and ethical opinions then anyone else? Based on what do they offer their moral and ethical opinions and why should they be binding on anyone?

The Supreme Court should have 1 and only 1 purpose, to decide matters of law.


Darz said...

what you say is true......

However it is a shame and disgrace and a terrbile chilul hashem that Moshe Katsav be in public position in a position of authority. I hope he quiickly resigns. Every day he doesnt brings shame to us all.

Taryag said...

You're into complex areas of constitutional law and in particular the issue of Parlimentary Supremacy aka Parlimanetary Sovereignty.

If a government had sufficient popular support then a Parliament could pass sufficiently strong legislation including constitutional amendments (that would require whatever constitional amending process that a particular country had to be used) to ensure no judicial review of certain types of legislation and a Parliament could when faced with judicial challenges force a constitutional crisis by refusing to back down by repassing legislation disallowed by the courts and perhaps resign over that issue and force an election. Ultimately if the people returned that governement with overwhelming support then the crisis would be over and Parlimaent would have won.

The problem is that such a process would sap a lot of a country's energy by focussing for many months on those issue and politicians are generally craven and want their confortable perks of office and they are afraid to stand up for principal. On the contrary, the trend in all western countries of which I am aware, is that of devolving power to the courts. Such occurred in Canada after its 1982 written constitution with its charter of rights and freedoms that gave much power to the courts to review the constitutionality of legislation was proclaimed. In the latter case Parlimentary Supremacy was IN THEORY, assured by a clause allowing Parliament to pass legislation that was not in accord with the "Charter" if such legislation included a "notwithstanding clause" and then such legislation would be immune from judicial overturning (but not from interpretation in other respects even then) for five years (although it could be repassed by Parliament again with such a "notwithstanding clause" and for another five years, etc.). IN PRACTICE, however, the Canadian Parliament has not used that clause as the opposition and the liberal press would then attack the party that attempted to table such legislation as as being "undemocratic".

In the U.S. the right of judicial review is a matter of the balance of powers provisions of its constitution, however the interpretation of the constitution including the issue of whether a law is reviewable is left to the courts and such is where the problem lies.

So in practice we give lip service to the British concept of Parlimentary supremacy but thus only in theory but in practice politicians cede power to the courts because of the polical costs of parliament invoking its supremacy.

Israel, AIUI, opened the door to much more widespread judicial review by passing constitutional rights legislation a few years ago and then its Supreme court lead by Justice Barak used that as a wedge to create widespread judicial review. The same Kenesset that passed such sonstitional legislation could use the same process to revoke or amend such legislation that the courts used to gain their power of judicial review; however the leftwing parties and their supporters and the liberal press would then provoke a political crisis.

So it all comes down to political will and popular support.

bluke said...

The so called "constitutional rights" legislation is a sham. They were passed in committee by a fraction of the Knesset (32-21 and 23-0), were not subject to national debate or passed by a referendum or other democratic process which would give it widespread legitimacy.

Taryag said...


Aderabah- Whether or not such is a "sham" will unfortunately be left to very courts that do not accept that such is a sham to decide. They will decide the very issue of the extent of their own power to judicially review legislation or the acts of government bodies. This will continue unless it is redefined by a politically effective method such as an election in which the issue of judicial power is a major one, or a referendum as to that issue.

bluke said...

That is exactly my point, the courts have taken over.

Taryag said...

I understand your point; however my point is that if there was sufficient political will by a governing party with sufficient Knesset support and/or if there was an election in which judicial power was a major issue and the will of the majority of the people was made clear, then the courts would not be able to act as they do. Its really a political issue and the courts have stepped in to fill a vacume created by political laziness, ineptitude or cowardice. So its convenient to blame the courts when in reality you should blame the politicians.