Leftist Israelis have dubbed the Netanyahu government’s flailing efforts to pass judicial reform “regime coup,” and those two differing terms immediately identified the participant in the debate as a supporter or opponent of the reform. On Thursday, Knesset Speaker Amir Ohana came up with what both left and right will surely recognize as a regime-changing move. Excerpts from a Rosh Hashanah profile of Ohana in Yedioth Aharonot, the speaker suggested a radical solution to the impasse between the judicial and executive branches: a constitutional court.
A week ago, Speaker Ohana took to the podium with an unwavering warning to the special, 15-judge panel of the Supreme Court that was going to hear petitions against the reasonability amendment to the Basic Law: The Judiciary.
“The need to balance the branches of government is becoming more acute than ever when it appears that even the one boundary that has not been crossed so far, the cancellation of basic laws by the judicial branch, may be crossed,” he said.
Noting that the amendment was passed by an absolute majority of 64 MKs, compared to the crown jewel of the activist court’s agenda, Basic Law: Human Dignity and Liberty, which was passed by only 32 votes, Ohana cautioned: “If the High Court rejects a basic law, then all the decisions it has made to date relying on the supreme status of the basic laws would become null and void.”
And then Speaker Ohana uttered what is sure to become an immortal phrase, perhaps equal to FDR’s “We have nothing to fear but fear itself,” and Churchill’s “We shall fight on the beaches.” Ohana declared: “One thing I can say – the Knesset will not meekly accept its trampling.”
He concluded the speech of his life, saying: “I suggest to the court and its judges whom I respect very much – recognize the limitations of your own power, not only those of the other branches. Recognize that in a democracy no branch of government is omnipotent. I know that the executive branch has understood this, as did the legislative branch. Now it’s your turn.”
And so, two days after the court went ahead and not only debated a basic law, it also showed its intent to annul it, in complete disregard to 75 years of tradition – Speaker Ohana made his move.
“There are a variety of ideas for bills that the Knesset will propose to deal with this trampling, including the establishment of a court for constitutional issues,” he told Yedioth.
One of those proposals is the establishment of a Constitutional Court, which will not be made up only of judges. The Constitutional Court will in effect replace the High Court of Justice while keeping the Supreme Court intact.
In Israel, the Supreme Court acts much like the US Supreme Court, hearing appeals that have gone through the various courts until they landed at its doorstep. The High Court of Justice, however, is a unique Israeli animal, where the right of standing for appeals is minimized, and petitioners are not required to go through the judicial hierarchy.
Being the final arbiter, the High Court of Justice is in a position to quash all the complaints against its own conduct. This became disturbingly clear when Court President Esther Hayut refused repeatedly to recuse herself from Tuesday’s hearing on the reasonability amendment, even though she carried a lengthy and detailed attack on the same amendment in a public speech. The respondents tried three times to make her recuse herself, and each time she rebuffed their arguments.
A Constitutional Court could hear appeals to recuse Esther Hayut and, presumably, order the court president to do something else on Tuesday, we hear the beaches are still warm and almost empty.
“In a constitutional court, which will be authorized to debate the constitutional issues that exist even though there is no constitution in Israel, and which will deal with values, worldviews, and ideological concepts, there is no advantage to jurists,” Ohana explained. “Public representatives from a variety of fields will also be able to sit in it. This is one of many bills that will surely be discussed should it become necessary.”
If you ask me, Ohana is borrowing a page from FDR’s playbook on packing the courts, and doing so brilliantly.
During FDR’s first years in office, the Supreme Court struck down several key pieces of the President’s New Deal legislation on the grounds that those laws delegated too much authority to the executive branch. But after his landslide reelection in 1936, President Roosevelt proposed in February 1937 retirement with full pay for all the justices over age 70. Should a justice refuse to retire (US Supreme Court justices are appointed for life), an “assistant” with full voting rights would be appointed to them. Congress opposed the “court-packing” plan, but the justices took the hint and soon enough started to approve the New Deal laws.
There’s a lot a creative Speaker of the Knesset can also do to make life unhappy for Supreme Court judges. I have no doubt the bear will become acutely aware of this poking.
God bless you, Speaker Ohana, and the democracy you so ably defend.