The Debate over Levin’s Judicial Reform (Column 534)
Why the debate is being conducted on the wrong plane
The column tries to avoid the semantic quarrel over whether the proposed arrangement would still be called a democracy. In his view, that is an amorphous term that each side fills as it wishes, so the proper discussion is not how to label the regime but which arrangements are correct, proper, and balanced. He also notes that the proposals are still not final, that there are disputes over wording, majorities, the scope of the override clause, the reasonableness doctrine, and methods of appointment, and therefore the apocalypse the critics are currently drawing rests on combining all the most extreme versions at once. Conversely, the victory celebrations of the reform’s supporters are no less premature.
Each clause may be justified on its own, but only the overall picture reveals the danger
The column stresses that public debate tends to become tribal: whoever supports the reform automatically approves every clause, and whoever opposes it automatically rejects them all. In his view, that is a mistake. Almost every clause can be given a good rationale, and some of them are even called for in light of the distortions that have developed. But that does not mean the package as a whole is right. On the contrary, precisely because each correction aims at a real problem, combining them all in a sharp form may create a new and opposite distortion. That is why a serious discussion has to move from clause by clause argument to the question of what kind of regime structure emerges from the sum of the changes.
The background to right-wing anger: a legal system that amassed power, defended itself arrogantly, and lost public trust
The column identifies with the basic claim of Levin and large parts of the right that the balance among the branches has been skewed in favor of the court. Even if in practice the HCJ often shows restraint, the power it took for itself, its mode of operation, the manipulations attributed to the system, and its near-total refusal to acknowledge mistakes or hear criticism created deep frustration and a loss of trust. Figures from the legal establishment, led by Aharon Barak and the system’s spokespeople, are described as speaking self-righteously about judicial independence while refusing to recognize their own role in creating the backlash. So the anger toward them is not groundless. Even so, it does not follow that every counterreaction by the government is correct; even criticism voiced hysterically may contain a real point.
The supermarket case shows that worldviews do affect rulings
To undermine the myth of judicial objectivity, the column cites the supermarket case, in which five secular justices ruled one way and two religious justices ruled the other way, and yet President Naor claimed that this did not reflect a religious or secular outlook but only professional interpretation. The column rejects that denial: it is obvious that where there are several plausible interpretive options, a judge’s values matter. That does not mean every HCJ ruling is left-wing or anti-religious; when the law is clear, judges with different outlooks will reach the same result. The problem arises precisely in the contested zones. Therefore the demand is not for full mechanical representation, but for honest recognition that judicial composition matters, and for a panel-setting mechanism that does not always guarantee the victory of one value group.
The core example: changing the Judicial Selection Committee and abolishing reasonableness together
The column presents the combination of these two clauses as an example that illuminates the whole debate. On the one hand, there is logic to the criticism of a situation in which judges effectively appoint people like themselves, producing a relatively homogeneous court. On the other hand, there is also a real problem in using the reasonableness doctrine to strike down governmental decisions according to the court’s own taste without clear grounding in statute. But if both clauses are changed together in an extreme way, the result is not correction but a full reversal of the imbalance: the government will be able to appoint judges loyal to its line, while the court will be stripped of one of its central tools of review. The result is a court replicated in the image of the coalition, unable to stop its unreasonable decisions. Had only one of these clauses been changed, or both been changed moderately, a better balance could have been achieved.
An override clause of 61 makes every coalition nearly all-powerful
According to the column, if an override clause by a majority of 61 is added to this package, what emerges is almost unlimited coalition control. Any government will be able to legislate, bypass judicial review, and amend basic laws according to immediate need. The column stresses that comparisons to Canada or Finland are unhelpful here, because the Israeli structure is entirely different. In the absence of effective checks, it becomes easy to reach arbitrary, discriminatory, and even regime-altering decisions, and the fact that absurd or self-interested decisions have already been made in Israel shows that this is not fantasy. The argument is principled: even if the current government is only a particularly sharp example, no accidental majority should be given almost absolute power over rights, resources, and the rules of the game themselves.
In Israel the Knesset is not an independent check but an extension of the government
The column insists that in Israel one cannot simply rely on the claim that the elected Knesset will balance the government. Under the existing system, MKs depend on the prime minister and the government for positions, committee chairmanships, and political advancement, and therefore the Knesset is not truly a separate and strong branch. In many cases, in practice, the government, and sometimes even the prime minister alone, controls the Knesset. So if the court too is greatly weakened, what remains is not three branches but almost one branch. דווקא the proposals that would deepen the Knesset’s dependence on the government only illustrate that danger further. From the column’s perspective, this is no longer only a debate about balance among branches but about whether distinct branches exist at all.
Even if the HCJ is not the ideal institution, there must be some body that reviews the government
The column agrees that constitutional review and use of the reasonableness doctrine rest to a large extent on values and not only on legal technique, and that the court’s composition does not perfectly represent the public. Even so, he sees as demagogic the position that the court lacks authority to strike down laws or basic laws when no alternative institutional mechanism is offered. In Israeli reality, leaving the government without meaningful review is more dangerous than the flaws of judicial review. Therefore, if one does not want the HCJ in its current format, one must propose another mechanism: a constitutional court, another review body, or at least a narrower form of judicial review with the full bench and a supermajority. The principle is that there must always be some actor capable of blocking unreasonable or destructive moves by the majority.
The criticism of reform supporters: piecemeal and vengeful answers only prove why checks are needed
At the end of the column, he also criticizes defenders of the reform on the right who dismantle the objections clause by clause while ignoring the overall picture. He notes more serious piecemeal critiques favorably, but argues that they too miss the main point, while other writers show a clear tendency toward revenge, arrogance, and a desire to hand the rival camp a sweeter defeat rather than reach the right arrangement. In his view, the very claim that there is no need to persuade, no point in listening, and that one should simply act by force of the majority is itself a clear symptom of the coalition’s excess power and of the reason checks are needed. The conclusion is that it is wrong to answer the arrogance of the legal establishment with counter-arrogance, because the state belongs to all of us and the sword can turn back on everyone. Precisely if one wants real correction, one has to listen to criticism, moderate the proposal, balance it, and build a mechanism that does not hand all power to any one side.
The Debate over Levin’s Judicial Reform
In the column before last I discussed the new coalition and the hysterical fears of it and its policies. In recent days, following the press conference by Justice Minister Yariv Levin (held the evening before that column was published), the debate has been converging on the judicial reform proposed by Minister Levin. We are now between two stormy demonstrations against it (last Saturday night and, God willing, the upcoming one). Here I wish to touch briefly on some fundamental aspects of this debate, without getting into all the details.
Necessary Preliminaries
Let me preface by saying that, in my eyes, Minister Levin is a serious and truly liberal person—unlike most of his colleagues in the coalition, and in particular in Likud. I am also certain he has no interest in dismantling the judicial system, and that he genuinely cares about democracy and is trying to restore what he believes is a balance that has been upset (in my opinion this is true for most components of the coalition, at least those to whom one can ascribe a coherent view). Moreover, I am quite sure he is not serving as Netanyahu’s long arm here, contrary to the accusations. On the contrary, it seems the proposed reform is his own “baby” (he has been talking about it for years; unlike others, he is acting accordingly and with full vigor to realize it), and it is well known that he conditioned his appointment as Justice Minister on Netanyahu’s support for this. The participation of the religious and Haredi parties in the initiative stems from their sense of discrimination, and in my view this is quite authentic.
On the other side, the claims of the opponents—even on this issue (as with the other issues described in that column)—are hysterical, and as hysterical people tend to do, they pile on problems and magnify them with or without justification. Still, it is important to understand that at least some of their claims do have merit. My principal contention is that the problem does not lie in any particular component of Levin’s plan taken in isolation, but in the aggregate that is formed by it.
Some Methodological Notes
I already wrote in that column that (also) this debate is being conducted improperly. In many cases, there is an argument over how “democracy” is defined, and whether Levin’s steps would still leave us within the bounds of a democracy (Hungary, Poland, Turkey, etc.). Regardless of your views on the substance, it is clear there is no point entering such exhausting semantic polemics. In any case, everyone pours into this vague term whatever they wish. Whoever desires separation of powers folds that into the definition of “democracy”; whoever wants only majority rule includes only that and excludes everything else. Tell me what “democracy” means to you, and I will tell you who you are. This is a needless argument, conducted on the wrong methodological plane. We should focus on what is right and proper to do and what is not, and it matters not whether you call it “democracy” or “hyperbolic plutokrachtsan.”
Second, for now there are no concrete decisions on all the relevant fronts. Various proposals are floated, and there are differences among people and schools of thought regarding the doses and other details in each (an override clause regarding what? By what majority? Against every panel of the High Court of Justice and in every composition of the Knesset? Should the reasonableness ground be abolished entirely, or only with respect to annulment of statutes? Should the use of reasonableness require a special majority in the court? And so on and so forth). It is clear that before these proposals become law they will undergo changes, not only due to external criticism but also because of disagreements within the coalition itself (there is also a certain moderate liberal element there—incidentally, mainly Netanyahu himself). Therefore, the hysterical accusations at this stage are surely exaggerated. What critics do is collect the most extreme formulations of every clause and paint an apocalyptic picture that emerges from that aggregate. One must understand that at this stage people are merely placing the pieces on the board, but the game is only beginning. It is certainly appropriate to express positions on what is proper and what is not, to critique the doses, to propose this or that idea—but shrieking hysterically about “the end of democracy” (from the left) or reciting full Hallel over its refounding (from the right) is neither possible nor helpful. Neither side is speaking the word of the living God.
Third, in many cases the debate is conducted over each clause separately (the override clause, the status of legal advisers, the reasonableness ground, the method of selecting judges, etc.). Comparisons are drawn with other countries, and thus people “prove,” sometimes with good taste and sometimes without any, what the concept of “democracy” includes. To my judgment, each clause in Yariv Levin’s plan can be justified (some are truly called for; others can be debated as to dosage and adjustments). Therefore those who categorically and a priori claim that each clause, in and of itself, is unworthy, are mistaken. And in general, note that—as always—the debate is sweeping: whoever opposes Levin’s initiative opposes all of its clauses; whoever supports it sees in each clause the vision of redemption. As usual, very few nuanced positions are heard in our public discourse.
Fourth, due to the previous point, the main issue over which we ought to argue is the overall picture that emerges from the ensemble of these clauses. Even if each clause on its own seems reasonable to you, it is important to pay attention to the picture that emerges from the aggregate as a whole. In my judgment, the ensemble of changes (most of them justified) creates a highly problematic situation in terms of balance among the branches of government—and that is the problem.
Background
The background is the strong feeling, at least on the right, that the balance among the branches has been upset in recent years, tipping too much toward the judicial branch. Even if in many cases it acts with sensitivity and restraint—and I fully agree that in most cases it does—the power it has (mainly power it took upon itself) and the constitutional structure created thereby are problematic. Add to this the manipulations it uses against politicians and citizens in general; its unwillingness to accept criticism, in ways that sometimes recall a criminal gang protecting itself by any means; and, in particular, that all this is accompanied by sanctimonious and unconvincing speeches by the heads of the system (Supreme Court Presidents, senior officials in the State Attorney’s Office, the Attorney General, retired justices) about their pure intentions and good faith. All this has led most of the public—at least on the right—to lose faith in the system. Why does this happen mainly on the right (with a few righteous in Sodom: Haim Ramon, Daniel Friedmann, Menachem Mautner)? Because for the left it is very convenient to cling to the judicial system as the remaining power center against a right that time and again wins a political majority that only grows stronger.
That sense of imbalance and frustration produced the right’s counter-reaction, demanding that the scales be tilted back toward the other branches, the legislative and the executive. This is Yariv Levin’s basic motivation, and as a rule I fully identify with it. True liberals also feel that the judiciary has greatly overreached in its arrogance and its excessive use of power not granted to it.
When I hear Dina Zilber argue against the imbalance that would result from the reform, I don’t know whether to laugh or cry. The very person who, forcefully and without any legal basis, arrogated powers to herself to promote her (to me problematic, but that’s not the point) agenda against entirely legitimate decisions by the political branches, now laments their expected counter-reaction. The same holds for the critiques of Aharon Barak and the other darlings of the legal establishment, who crudely and shamelessly ignore their share in what is happening now. They caused this entire story with their own ten fingers, but as usual they blame the entire universe—except themselves. As Ben-Dror Yemini aptly wrote:
In the many interviews Barak has given over the years, including these days, he speaks with wondrous innocence as if he does not understand what is unbalanced and what needs fixing. “Why do they hate me?” he asks again and again. He presents a remarkably tendentious picture, and I find it hard to believe he is truly that naïve, obtuse, and unaware. To me, and to many others, it is more plausible that he is simply a manipulator. This characterizes the sanctimonious discourse of the legal establishment across its branches and personnel. When the Court President repeats again and again the importance of judicial independence without adding a word about mistakes that were made and without showing the slightest willingness to do anything to address the strong and accurate claims against the system, it is simply unconvincing. It is very hard to take such sweeping and unserious criticism seriously—so arrogant and self-righteous, and so deaf to reality.
All this, of course, leads the current coalition and its supporters to ignore the criticism, see it as political goading, and push the reform forward at full throttle in its most extreme formulations. They are quite right that the situation calls for correction, yet the criticism itself is still worth discussing—“Just because you’re paranoid doesn’t mean they’re not after you.” Before I proceed, let me bring an instructive example.
The “Supermarket” Ruling
This is a good time to recall the “Supermarket” ruling (which dealt with Interior Minister Deri’s decision not to allow municipalities to decide on opening businesses on Shabbat). I remind you that five secular justices were in favor and two religious justices opposed, and therefore the petition was dismissed by the High Court of Justice by a majority. In the words of the judgment:
It was decided by a majority (President M. Naor and Justices A. Hayut, Y. Danziger, Y. Amit, and D. Barak-Erez, against the dissent of Justices N. Hendel and N. Sohlberg), as stated in President M. Naor’s opinion, to dismiss the petition for a further hearing and to leave in place the judgment that was the subject of the further hearing.
What are your conclusions about the ruling and its dependence on the justices’ worldviews? Well, then-President Miriam Naor has a novelty for you. This unequivocal picture did not prevent her from writing, at the end of the ruling, the following words:
My decision does not seek to express a “secular” or “religious” outlook. This judgment reflects what, in my eyes, is the correct interpretation of the law, as I explained at length.
She also reiterated orally that this was not a matter of worldview but of professional statutory interpretation. For some reason, that professional interpretation—clean of values and agendas—led five (!) secular justices to a conclusion that just happened (!) to align with the secular view, while the two religious justices reached the opposite “professional” conclusion. Regardless of my own outlook (I personally tend to think municipalities should be allowed to decide on opening businesses on Shabbat, like the secular majority), it is obvious to any sensible person that a judge’s values exert a strong influence on the decision. So why do Miriam Naor and her obtuse colleagues deny this? Simply because the conclusion would be that there is a problem with a court whose composition does not faithfully represent the public—a claim they fight tooth and nail (in two senses: they claim the composition does represent the public, and also that representation is unnecessary because everything is professional and agenda-free).
Indeed, there is a secular majority in Israel (though I am not entirely sure if you include traditionalists), and therefore I do not expect equal representation of secular and religious on the bench. But there are two important points I do expect. First, stop throwing sand in our eyes with obtuse talk about judicial objectivity and the absence of value-laden reflection in decisions. In addition, I would expect the Court President who sets the panel for such hearings to do so with awareness that this particular issue is indeed dependent on worldviews. Usually she is well aware of this and sets the panels accordingly to match her worldview, and there are countless examples.
We must understand that there are indeed quite a few Supreme Court rulings in favor of the religious side (i.e., decisions allowing the government to act in that direction), and therefore the claim that all or most rulings tilt toward the secular-left is, in my opinion, untrue. But that happens where the legally compelled conclusion is clear. In such cases a religious judge will also rule toward the secular side and a secular judge toward the religious side. The problem arises in those areas where several interpretive options exist, and there judges disagree. In those cases—in my understanding this is true in almost all such cases (there are many examples)—opinions are divided clearly according to worldview, and naturally the ruling almost always tilts toward the secular-left.
Of course, one can argue that this is simply the meaning of majority rule. The religious public is a minority, hence its representation on the Court will be accordingly, and decisions are made by majority. But here we encounter what I have elsewhere called “the David Levy fallacy.” David Levy argued that although he had about 30% support in the Likud Central Committee, the share of positions his supporters received was 0. They answered that the majority rules, there is a democratic vote, hence the outcome. He replied that under this “democratic” method, in every vote the majority rules, so 51% of the committee takes 100% of the positions. It is more reasonable to find another mechanism whereby about 30% of the positions would go to his supporters. In the Court this is really easy: out of all the cases where a split between religious and secular is expected, whoever sets the panel should ensure that in about 25% of the cases there is a religious majority and in about 75% there is a secular majority. Incidentally, if the panels were set entirely at random (as they should have been), the resulting outcome would not be far from that. But of course, that is not how panels are set, and on that I lament.
Back to our discussion. Thus far I have described the distress and frustration that lead the current coalition to initiate reform of the judicial system. They are right that the situation is distorted, and every clause included in the reform, down to the last, in my view indeed calls for correction. But, as noted, arguments in favor of correcting this or that clause—each of which may well be correct—are not the same as the overall picture that emerges from the ensemble. And that picture is very problematic.
The Importance of Discussing the Whole: An Example
Let me give just one example to clarify why it is important to address the whole. Consider two clauses in Levin’s proposed reform: the composition of the Judicial Selection Committee and the reasonableness ground. The situation until a few years ago (today it is somewhat different) was that the justices brought “their crowd” to the bench. The three justices on the committee had a veto over any appointment, creating a Supreme Court that was very monochromatic. Now add to this the use of the reasonableness ground (also a judicial initiative with no solid basis in Knesset legislation), under which statutes or administrative decisions are struck down because they seem unreasonable to the Court, even if there is no basis in the law itself. One can debate each of these clauses (regarding reasonableness, even within the Court there were differing views, including in the Supermarket ruling cited above). The combination of the two is utter absurdity, and it is no wonder that Yariv Levin and many others were very troubled by this state of affairs. A very particular group of unelected people, with a fairly similar ideological and social color, makes decisions and cancels decisions of the elected Knesset and government simply because those do not seem right to them. This essentially means taking the reins from the government and Knesset and handing them to a small, homogeneous group of unelected people. That is utterly unacceptable, and it is no wonder the current coalition wants to change it.
Parenthetically, I must say that in practical terms this feeling is not entirely justified, because the Court generally exercises restraint and its interventions are not numerous. But there are such interventions, and each sharpens the fact that the basic constitutional structure here is distorted. The feeling was that at least in principle a rule of the High Court was formed, even if it was not used much, and what sharpened the frustration was that this was a rule the Court had assumed for itself.[1]
Because of this feeling, Yariv Levin and his colleagues believe the reasonableness ground should be abolished and the method of selecting judges should be changed (so that, in practice, the government would be able to appoint whomever it wants—this is the current proposal). Thus the staffing of the Supreme Court would be more balanced, and it would not presume to cancel decisions and statutes based solely on its subjective taste without any basis in the statute itself.
But that is a problematic overreaction. First, under Levin’s proposal, the coalition would have an absolute majority on the committee. That is, every justice appointed would conform to its spirit. This does not produce balance and diversity; it clones the government into the Court. That in itself is a severe blow to the balance among the branches. Beyond this, changing both clauses together will create an imbalance in the opposite direction: a situation where the government can do whatever it wants and a Court loyal to it, stripped of meaningful review tools, cannot intervene. Even when matters are unreasonable in the Court’s view—a Court loyal to the government—it still will have no ability to act.
What would be proper in such a situation is to cancel one clause and leave the other in place. For example, one could leave the reasonableness ground (certainly if its use requires an expanded panel and a special majority), while ensuring a more balanced composition of the Court; then even if a decision or statute is struck down, it will not be due to the caprice or agenda of a particular group. That would provide some balance to the excessive power in the hands of the government, without giving excessive power to the Court—and certainly not to a group that controls it. Alternatively, one could abolish the reasonableness ground but leave the Court’s composition not under government control (and perhaps make it more balanced in other ways).
Levin’s justified sense that there is distortion due to these two clauses has led him to propose changing both. But a reform that intends to make both changes creates an imbalance in the opposite direction, and the criticism is rightly awakened. One must understand that, in principle, changing one of the clauses (or moderating both) would have brought the desired result more evenly. The reaction to excess power in the Court leads us to grant excess power to the government. But neither side is balanced or correct. Note that the problem here is not with either clause as such, for each indeed seeks to correct a distorted and problematic situation. The problem arises from the combination of the two and the dosage of each. This example is a paradigm for the entire discussion, teaching that it is wrong to conduct it clause by clause; rather, we must examine the whole.
Of course, if we add to this an override clause by a majority of 61, this means any coalition (there is no coalition with fewer than 61) can do whatever it pleases. The Court would be unable to act in almost any case, and in the few situations where it could, the coalition could readily override it. This is an extremely severe imbalance, and I am not interested in hearing that in Canada, Finland, or Zimbabwe it works wonderfully. Here it will not and cannot work. I cannot understand how intelligent and liberal people like Yariv Levin support such a crazy change.
In the situation that would be created if the proposed reform is adopted, the government could decide on a special tax on redheads (there is already a proposal for an outrageous tax on pet ownership), distribute land for free to supporters of Otzma Yehudit and to those 1.80 meters tall, shut down a newspaper for holding unpopular opinions, discriminate against LGBTQ people, and so forth—and there would be no legal way to stop it. Such decisions have already been made to date, so this is not science fiction. The difference is that from now on there would be no one to hold the line. Are you truly willing to place absolute authority to make such decisions in the hands of a government—or a prime minister alone? And I am not speaking about the current prime minister and government (which is a recipe for disaster), but in principle.
One can, of course, think of more extreme examples: Netanyahu could declare himself a chancellor with unlimited powers for life—or, more modestly, simply extend his term to ten years. After all, changing Basic Laws here is a matter of interest, a momentary decision, and a simple coalition majority. These are everyday acts. How is that essentially different from a Basic Law that manufactures for us an additional prime minister (the “alternate”), so that a convicted felon could be seated as finance minister (and if the High Court strikes him down, the plan is to appoint him alternate prime minister)? Or a decision to install a deputy minister with no minister above him in the Health Ministry—just to allow the Haredim to siphon us without responsibility?! And what about granting sweeping promises to the gas companies that bind the hands of governments and future revenues and prevent them from making tax or other decisions regarding them (as happened in 2015 and was struck down by the Court)? All these are examples of decisions that have already been made, and in most of them the High Court intervened, sometimes on reasonableness grounds. All such decisions and their ilk—and ones far more extreme—could be made if Deri gets up on the wrong side of the bed or Sara tells Netanyahu he must arrange something else for her, and there would be no one to balance this madness. Does this sound to anyone like a reasonable and balanced situation?
Separation of Powers
Well then, you will surely say that the Knesset can balance the government. The Knesset is at least an elected institution that represents the public—unlike the Court. That would be correct if we truly had a Knesset. Here it is worth repeating what I have written more than once: Israel does not have three branches of government. The government (and in many cases the prime minister alone) controls the Knesset without limit. In our system, MKs need the government in order to obtain positions. The prime minister determines the chairmanships and composition of committees, who will be ministers and deputies—all from among the MKs. That is, everyone depends on him and needs him. In such a situation, the Knesset cannot truly balance the government, and therefore it is even more necessary to grant significant power to the judicial branch. After the reform, there is a concern that the power now in the hands of the judiciary will, for the most part, also pass to the executive branch; then it, too, will disappear along with the Knesset, and we will be left with a single governing authority. The players will decide who the judge will be. One might say the principal problem is not balance among branches but the very existence of the branches. The result is that, in many respects, a single individual can make any decision he wishes about our fate and our resources, and there is no one on earth who can intervene.
As an aside, just this morning I heard of the proposal by the Minister of Transportation—our honored Ms. Miri Regev—to allow ministers who resigned from the Knesset to decide to reenter it and eject the “Norwegian” MKs who replaced them, without requiring the ministers to give up their ministerial posts. This would create even greater dependence of MKs on the government, and would almost completely neutralize the Knesset’s status and power—which are already at a low ebb. Again, it is only a proposal, and I doubt it will pass; but consider in whose hands our fate and constitutional and practical decisions rest, and you will understand why such great concerns are now being voiced and why stronger balancing is required.
Many argue that even if balance and review are necessary, it is not right for the Court to be the reviewer. The reason is that such review is based on values and not on law, and in this domain the Court is not supposed to understand more than the public—certainly when its composition does not reflect public opinion. On the face of it, this is a correct argument—but on second thought it is astonishingly demagogic.
Indeed, I also think the Court is not necessarily staffed by the luminaries of the generation—not even legally, and certainly not morally and ethically. Nor does it represent the public’s composition and values. But note that there is currently no other body to do this. When a situation is created in which unbalanced power is placed in the hands of the government, with the prime minister effectively an almost sole and exclusive ruler, I am prepared to take the risk and entrust to the Court the authority to review by virtue of the reasonableness ground—even if it will be exercised according to the justices’ values (especially as the composition today is far more balanced).
The same holds for the debate about striking down statutes and even Basic Laws. Many claim the Court has no authority to invalidate statutes at all—though I do not think they are right. But certainly when it comes to Basic Laws the problem is even harder. Striking down a statute is done by virtue of a Basic Law; but striking down a Basic Law sounds theoretically far-fetched. So even if Levin is correct that, on a theoretical plane, there is no justification for a court to invalidate statutes, and certainly not Basic Laws, still—what is the alternative?! We cannot leave a blank check to the executive (or, de facto, to the prime minister alone).
If we condition the authority for judicial review on a requirement that invalidating a statute or an administrative act requires a full bench (15 justices) and a special majority among them (say, 12 of the 15), we arrive at a not-bad balance. That is certainly better than abolishing the reasonableness ground without proposing some other institution to review the government (a constitutional court, a supreme spiritual council, a council of elders, etc.), thereby leaving the prime minister as sole ruler. Think of enacting insane Basic Laws (the “Chancellor Law” above). Is it reasonable that there be no body here able to review them? Whoever points out that the Court lacks authority to invalidate statutes without proposing who would do so instead is a demagogue.[2]
Even if we were not speaking of Netanyahu, Sara, and Yair—who run our Byzantine court—I do not want there to be any person on earth, even if it were the Sweet Singer of Israel or Mother Teresa, who would have exclusive authority over me without proper checks. When it comes to figures like Netanyahu or Deri, leaving them exclusive and absolute power is sheer madness. Yes, I know, my words apply even though a large part of the public chose them. But, as noted, Netanyahu here is only an extreme case. The very possibility points to the fact that the normative regime that would be created here is problematic in itself.
Of course one can always say that a government that does such things will lose the public’s confidence and fall in the next elections. The public is the missing reviewer in this equation. But note: if someone appoints himself chancellor for life, there will be no “next elections.” Beyond that, even if the government again wins a majority in another election, I am not willing that the majority be able to decide to abolish democracy. As I understand it, the majority has no such authority. I, at any rate, am not willing to accept it. On such terms I did not agree to the democratic game. Therefore there must be some institution—be it the High Court or some other body—that can give feedback to the unreasonable power we are about to place in the hands of the government and its head. Whoever does not want the High Court here—that is perfectly fine. Let him propose another body or mechanism.
Back to the Specific Critiques
Up to this point I have pointed to the problem that emerges from the whole, even though looking at each clause in the reform individually does show that change is indeed called for. This morning I saw a specific critique by a person named Alon Goldberg against the criticisms of Barak and his colleagues. Unlike many others, I think he writes sensibly on each of the clauses, and it is good that he presents his position as a defense of democracy rather than a blow against it. What bothered me was his disregard of the whole. He too addresses the claims clause by clause, ignoring the problematics of the whole that is about to be formed here.
By contrast, yesterday I saw an article by Gadi Taub on Mida, in which he also presents specific critiques of the critics and defends the clauses of Levin’s plan. Not for the first time, I was disappointed to discover what “Bibism” does to an intelligent and educated person like him. His tendentiousness is truly frustrating, bringing him to claim foolish things (with great certitude, of course). Although there is much room to critique the critics and side with Levin’s reform—certainly if one is dealing on the particular plane (clause by clause)—he managed to achieve the feat of not only ignoring the problematic whole, but also making most of his particular claims untenable.
His blatant condescension toward his own camp leads him to conclude that he must arm people with talking points against the criticism, lest they get confused and fail to grasp the pure truth. I will not address his arguments in detail, since most were answered above, but his preface is important to the discussion and a good place to end the column:
There is no urgency to persuade the left of the justice of the judicial reform presented by Justice Minister Yariv Levin. Now is the time to act, and one should not be impressed by the screeching.
It seems that many indeed feel the “screeches” are far less impressive after we received a resounding demonstration of the difference between the attitude of those who call themselves “gatekeepers” toward a right-wing government and their attitude toward a left-wing government. It seems that since Prince of Darkness Netanyahu kissed the cheek of the slumbering advisory beauty, she awoke to life and remembered to look for a “gate” to guard. This gap between what is permitted to the left and what is permitted to the right made it clear how the theory behind the concept of “gatekeepers” is devoid of integrity.
One need not respond seriously to every piece of nonsense, but for the record it is worth clarifying what the left is obscuring, and the flaws in the shallow arguments that later become talking points and slogans. Therefore, here is a brief survey of common demagogic statements in this debate, a reminder of the reality they seek to conceal, and how to respond to them.
This obtuseness and arrogance are a typical counter-reaction to the arrogance and obtuseness of the legal establishment (and the left) as I described above. They surely did not think to consult or reach agreements when advancing their judicial “revolutions,” and it is no wonder that the counter-reaction is obtuseness and arrogance from the other side. There is more than a whiff of sweet revenge here.
It seems that Taub, like many supporters of the reform, is not truly interested in the correct outcome; rather, they prefer to achieve a sweet victory and a crushing revenge on the left and the legal establishment. This may be natural, but it is highly inadvisable. After all, this is a state that belongs to all of us, and the sword can turn against all of us. Tomorrow morning a government may wish to issue decrees against Haredim or right-wingers, and in the absence of balance and judicial review it will be able to do so unimpeded. If one wants a proper and balanced result, it is unwise to act with arrogance and obtuseness; it is better to listen carefully to criticisms, and in the end decide whether to accept them or not.
Incidentally, the very possibility that the coalition can carry out revolutions by virtue of its Knesset majority—without listening to anyone, neither the opposition nor other governmental systems (like the courts); without considering other opinions; without offering answers and seriously deliberating these dramatic changes—purely out of a sense of (justified) revenge,[3] is itself a symptom of the excess power in their hands and of the importance of balancing, judicial or otherwise. These boastful declarations themselves pull the rug out from under the arguments they make.
[1] Incidentally, even this picture is not precise. The Knesset can always legislate a specific override clause within a statute that neutralizes the possibility of striking it down. The fact that it did not do so, and instead contented itself with complaining about the High Court when it annulled the statute in question, indicates it was likely pleased that the Court pulled the chestnuts out of the fire for it. So let them stop whining.
[2] Incidentally, there is a contradiction in the arguments against the High Court. Once a law is declared a Basic Law, it follows that a statute that contradicts it should be annulled by the Court. They argue back that even if there is a statute contradicting a Basic Law, because some Basic Laws were enacted by a chance and incidental majority, one cannot rely on them to annul another statute. But that is precisely the point: if it was enacted by an incidental majority, how can one grant it the status of a Basic Law? That is the true scandal, and it is the handiwork of the Knesset, not the Court. As practiced here, “Basic Law” has no meaning. Their amendment and enactment are done offhand, according to incidental need—and that cannot be a proper basis for Basic Laws.
[3] In the column before last I already mentioned that the first steps of every minister in office were to cancel the decisions of his predecessors—even on the declarative level (like changing the color scheme of the Transport Ministry under Miri Regev). The feeling is that this government is driven by feelings of revenge and spite, rather than by substantive considerations. They are not doing this because they think differently—which would be legitimate even if I disagreed with them—but because they wish to prove that power has changed hands and to exact revenge on their hated foes. I recall a skit from “Eretz Nehederet” that depicts the government’s steps as a policy based on a “davka” (spite) rationale. There is much truth in this. I do not recall such an example in past governments, of all types and colors.
Discussion
Hello Michi,
So far I’ve only read the introduction (after all, I have bugs to fix at work), and I agree that the overall picture is the problem—and what? Levin and Rothman don’t understand that? The cries of wolf—this time they really are justified. And the feeling of hysteria is justified. Here’s an interview with Rothman https://www.google.com/amp/s/www.kan.org.il/Item/ampify.aspx%3fu=https://www.kan.org.il/item/default.aspx%3fitemid%253D142467
Watch and listen for yourself, and form an opinion whether there is good faith here and concern for the people’s welfare or not.
And another question while we’re at it—did he use the expression “the mouth that forbade is the mouth that permitted” correctly?
It is not clear to me why many of the critics think that choosing a judge who is close to someone turns him into a “stooge/bought man” of whoever appointed him.
That could have been true if they could dismiss him when he showed independence in judgment.
However, judges have independence, and the possibility of firing them is on a par with the possibility of impeaching the President of the United States, and so from the moment they are appointed, they are not in fear of politicians—and they certainly have professional prestige to protect. Both here and abroad.
As for the deliberate provocativeness of the coalition’s actions, that is really called for, for a double/triple reason.
1. The opposition, which behaved like a bull in a china shop, certainly deserves to take a blow at least, for the educational reason that if they return to power,
they will internalize that their power is not forever. In other words, the reasoning is educational: don’t do it again.
2. To make it clear to the wider public that the coalition is present and governing.
3. Revenge is great! Especially when you didn’t bend over backwards to carry it out.
Beyond all that, Israel—whether defined as a democracy or not—has long been one huge piece of anarchy, increasingly resembling Sodom more and more each day.
In that situation, in my view, it would be preferable, at least for a limited period, to have a dictator who would make people stop showing contempt for one another and, no less importantly, stop showing contempt for the law.
Netanyahu, as an elected official, seems to me no worse than any other option in the political field.
I don’t understand the claim that the government is becoming the only branch of government and will be able to legislate blatantly unreasonable laws with no oversight at all. Even today the real authority lies with the Knesset, in the very fact that in principle it could decide to abolish the High Court entirely, so in effect the High Court derives its power from the Knesset. A capricious prime minister (Bibi) can decide to become chancellor for life, pass in one week the law that abolishes any ability to stop him, and that will be that.
The balance against this is that when something unreasonable comes along, the expectation is that there will be enough people who will rebel even against the leader and refuse to pass the law, or that the public will make a revolution.
On the day the people truly want a dark regime, we will really be in trouble, but the existing checks and balances won’t help against that.
The things that will apparently pass will be things that a sufficient number of people in the public will think are reasonable.
It is true that you can’t create airtight checks and balances. Still, there is no dispute that checks and balances are necessary. If a very extreme step is taken, perhaps there will be a revolt, but problematic decisions can be made (and are in fact made) that will not bring people to revolt. On the way to revolt there need to be intermediate stages.
Two remarks:
A. Regarding the number of laws that High Court justices struck down. Naturally, when a state is functioning properly, there aren’t a huge number of decisions one can say are critical. So the fact that the High Court struck down only 20 laws (roughly, I don’t remember how many) doesn’t say much, because everywhere there was a critical decision they stuck their nose in. What’s more, if you’ll recall, there are quite a few laws that never even came up for discussion from the outset because the High Court would strike them down. Atomic bombs were also used only twice in history, and yet quite a few wars were prevented because of that.
B. And what would happen, according to your approach, if someone files a petition against the Knesset, and the High Court justices decide that indeed the Knesset is illegitimate and that the great sage of the generation, Aharon Barak, is from now on the ruler of the state? In the end, there is always the concern that the Knesset will exploit its power more than is proper, just as there is a concern that the High Court justices will exploit their power more than is proper. On the question of whether I prefer to give power to the Knesset or to the judges, I would give it to the Knesset, because they stand for election by the people, and in addition coalition constraints and the fact that a government has to be formed from several parties are not bad restraints at all.
In any event the power is always in the hands of the elected representatives, since as you noted in the column they are the ones who grant the court the power to be independent, so in principle Bibi is a tyrant even without needing to enact an override law, because if he gets up tomorrow in a bad mood he’ll do whatever he wants, so I don’t understand what all the public uproar is about
As usual, a very interesting column from the rabbi (and balanced too..:).
I also think the court has the authority to strike down laws, but could the rabbi elaborate on the reasons why, in his opinion? Also, what is the rabbi’s opinion about invalidating Basic Laws not because of their content but because of a flawed legislative process? (Definitely a plausible scenario in our neck of the woods.)
Rabbi Michi’s claims are not correct:
1. There is a basic trust that must be given to the government, and without it there is no point in living together or in establishing a state. This is another one of those essences that precede form. Just as justice precedes law, so trust precedes institutions. The moment this is what you think about the elected representatives, you need to flee from this public.
It follows from the first clause— in any case, a government that wants to do whatever it pleases will be able to do so. It will simply pass Levin’s reform again and then do whatever it wants. There’s nothing to be done: a government always has absolute power over the courts if a majority of the public wants it. If the government wants to prevent the next elections, what will the court be able to do? After all, the branches of government (the police and the army) will be staffed by the majority and they won’t pay attention to the courts. In short, the left does not trust the right and thinks that through whining and laws it can prevent this. Well, it can’t (without using force itself. And that can always be done). If there is no trust in the people then war will break out and no softening of the reform will help. Since all the clauses are correct, they should be implemented.
As someone here remarked, the government can dismiss judges. And you can rely on their egos to make them want to try educating the government.
How and by what authority can a judge strike down a Basic Law (even by a unanimous decision)? By the authority of justice? If so, then I want to choose that judge directly, and for the election to be for four years like the elected representatives.
Judges have no responsibility, and therefore they also do not deserve authority. Therefore the government and Knesset, who are elected and can be removed, have greater power than they do. That is only logical. If you have no trust in the Knesset and the government, nothing will help you. Even all the dictators in the world have limits that they cannot allow themselves to cross, otherwise the people will remove them by force.
The left is simply whining that power has been taken from it, and democracy doesn’t bother it at all. It is completely obtuse and lacking self-awareness. I don’t think Barak is a manipulator. Otherwise he has been playing this game for almost 30 years and not once let slip a word that would reveal that he understands what he is doing is wrong. He is simply feeble-minded and autistic. It suits the left in general that the one standing at their head is, sorry, a hollow and empty man like all the media people. He indeed represents well the public that chose him. The ability of the left to ignore the paradoxes in its position that pop up in every argument with it is wondrous. The same duality the rabbi pointed to among the Haredim (only with lack of awareness).
Whoever really wants balance between the branches should hold elections for the courts just like for the Knesset. That way, a judge who disappoints the people will be removed from his position. Whoever has no trust in the people should go live in caves. And that’s what he should do in any case if he is right. One must separate from the wicked, as Maimonides mentioned about someone who lives among wicked people who force him to behave like them.
The reasonableness doctrine is used to examine the legality of decisions by administrative authorities, and it is not a ground for striking down primary legislation. To the best of my knowledge, the High Court has never struck down a Knesset law because it was unreasonable. The main ground by which the High Court examines the legality of primary legislation is proportionality, as established in the section of the Basic Law: Human Dignity and Liberty.
Nor is the reasonableness doctrine exactly an invention of Aharon Barak’s High Court, and it was used to invalidate administrative decisions long before he was appointed to the bench; its origin is in the common law we inherited from the English.
The Knesset itself recognized the grounds on which the High Court reviews administrative decisions, including the reasonableness doctrine, when it enacted the Courts for Administrative Affairs Law, 5760–2000, which states (section 8): “An Administrative Affairs Court shall hear an administrative petition and an administrative appeal in accordance with the grounds, authorities, and remedies under which the Supreme Court, sitting as the High Court of Justice, hears them, with the necessary modifications regarding an administrative petition and an administrative appeal.”
That is a whole article in itself, and this is not the place for it.
If the legislative process was contrary to the law, then of course the law is void. What’s the question?
With God’s help, 20 Tevet 5783
A situation in which a self-perpetuating unelected group can strike down any law and even a “Basic Law,” and cancel any government decision on the grounds of “unreasonableness,” turns the elected branches into bodies without authority. That is called “oligarchy.”
Review of the decisions of the legislative and executive branches should be carried out by a branch that is itself elected and accountable to the public for its decisions. What might be desirable is an “upper house,” whose members are elected by the public for a lengthy term and are barred from holding executive office. Review by such a body could provide the stable and substantive dimension that does not change due to petty political needs.
For example, there could be an “upper house” composed of sixty members, each elected for fifteen years, with one third of the members replaced every five years. Thus the reviewing body would be independent of the government and would be able to review and properly balance its decisions.
With blessings, Yaron Fishel Ordner
One of the major ills is that there is no requirement for internal elections in every party. Thus a situation is created in which Knesset members are completely dependent on the party leader, who is a sole ruler. That is the situation in Yesh Atid, the National Unity camp, and Yisrael Beiteinu, so that three or four leaders rule unchecked over dozens of Knesset members. It is specifically Netanyahu and Smotrich who maintain a proper selection process in their parties, in which the faction members are elected in internal primaries.
I was forced to listen to two lectures by Dr. Taub (I get paid for it); of course I commented to him when he spoke contemptuously about men greater and better than himself.
During the break outside I asked him: if you abolish the High Court (and he did not deny that in the end the initiatives mean abolishing the High Court), who will tell the government, “you’ve gone too far, this is not okay”?
He thought… thought…
Instead of admitting that this is very dangerous, he told me: look in the book by… Rothman…
I kept quiet.
Realizing he had overdone it, he asked me: is that an insulting suggestion?
I answered him honestly that it wasn’t even insulting—it was simply such a low level…
In short, it gives the impression of dangerous proposals, and that even those speaking in favor of them actually have no answer to the dangers they are bringing down on us.
As for “reasonableness review” of governmental decisions—professional expertise is needed here. It is strange to have a reality in which 15 jurists see themselves as “experts” in everything. Without any professional expertise or experience, they presume to determine what is “reasonable” in every matter. They know everything: economics and society, education and health, army and police, transportation and infrastructure, etc. etc. I fear that even “superheroes” would have difficulty being experts in everything 🙂
It would be worthwhile for the “upper house” that reviews the legislative and executive branches to also have committees specializing in each field, in which experienced experts would sit together alongside ethicists, legal experts, and public representatives, each contributing his own experience, expertise, and unique perspective. In this way the decision-making process would be more substantive.
With blessings, Yifa”or
You are very profound. Needless to say. Who are those greater and better than him? That band of feeble-minded jurists? The hollow rebbes of the left? Who do you think you are?
In any case, I’ll answer you. The public will tell the government that it crossed the line. Fine now? It seems that settles the matter.
Meanwhile, the reform is only returning the situation to what it was before Aharon Barak’s revolution. I don’t remember there being any special chaos then. Didn’t governments overdo it from time to time back then? And what happened since? Didn’t we survive? That’s what elections are for. Suppose tomorrow they abolish elections. Do you think that’s what will happen? If so, that just shows what the left really thinks in its heart of hearts about what it would do to others—like the Arabs who fled from here because they were afraid we would do to them what they thought of doing to us.
One of the claims you raise in the column against the reform is that today there is no alternative for balancing the government’s power, and therefore:
“When the prime minister is almost a single and exclusive ruler, I am willing to take the risk and give the court authority to review by means of the reasonableness doctrine, even if that is done in accordance with the judges’ values (especially since nowadays the composition there is already much more balanced).”
I do not understand the logic. After all, on the face of it, if one grants the court the power to strike down laws by means of the reasonableness doctrine, then it is the one that becomes the body that has the final say, and there is no one balancing its power (even if in practice it doesn’t use that authority much). Who exactly will save me from the High Court when, by striking down laws, it tramples the rights of the minority that is not represented there?
As a Haredi, I can testify that when I read the High Court’s rulings, more than once I felt that my values were being trampled. No elected body or otherwise was there to balance that governmental power, which could theoretically decide one day that I have no right to breathe. (That sounds absurd, but it certainly sounds no more absurd than the parallel claim that is constantly heard and assumes as a possibility that the government will legislate that all redheads should be executed.)
I think there are solutions to the problem of balance, but the fact is that right now, in practice, the alternatives on the table are: either give the final word to an elected body that is reviewed by the public, or give it to a group of jurists that does not represent the people’s values. In such a situation, in my humble opinion, anyone who chooses the second option is simply a tyrant. He basically thinks that he (or the judges) understands better than the capricious and primitive people what the correct values are, and he will impose them on them by force.
I truly don’t care whether he calls that tyranny “democracy.” Bottom line, it is unacceptable to me that someone else should determine for me what values are binding. I am prepared to accept, (up to a certain point), majority rule on value questions, because I understand that these are rules of the game within which I too have power, and it is proportional to the number of people who think like me. It is a deal in which sometimes I compromise and sometimes others do, so that we can all live here in relative peace. But to agree that a homogeneous and detached group of people will determine for me what may and may not be legislated? I think that is not proper. So improper that even if the majority of the people wanted to give them that power, I would not see myself as bound by that decision. In my eyes that is equivalent to a decision to execute the redheads.
The frequent involvement of judges in decisions that belong in the domain of policy people leads to a depreciation of the judges’ standing, as the public ceases to believe in their neutrality and objectivity.
Perhaps it would be more appropriate for retired judges to be attached to the “upper house” that would deal with reviewing the legislative and executive branches—but not as a “supreme authority,” rather as partners in the discussion who would also contribute from their knowledge and experience, not “from above” but “at eye level.”
With blessings, Yifa”or
A number of points that in my opinion are not discussed enough in the discourse on the reform—
* There is no possibility of compromising on a moderate reasonableness doctrine, or partial standing, and the like. Experience teaches that anything not set in stone will be met by elegant judicial disregard at best, or by “purposive interpretation” that turns it on its head.
*The right here suffers from a built-in disadvantage—the point of contention in court is always between conservative judges who tend not to intervene at all, and liberal judges who are eager always to intervene on behalf of one camp. Contrary to common assumption, a half-conservative and half-liberal court is not balanced; only a court that is entirely conservative, or one half activist for the right and half for the left, is balanced.
*Opponents of the reform can bring examples of bad laws or undesirable decisions that could pass if the High Court does not have the absolute final word, but even if in some of those cases they are right, one has to recognize that democracy has costs. The comparison cannot be against a perfect world but against the current situation. Moreover—like creative destruction in economics and like the falls of a toddler taking his first steps, there is evil that is necessary in the long term. Imagine that a handful of right-wing judges had stopped the Oslo Accords because talking with the PLO was contrary to law. True, thousands of deaths would have been spared and the folly that got us nowhere would have been spared, but that issue would have remained with us in the public discourse to this day and the division would have become uncontrollable.
*All the extremism and childishness of elected officials is made possible only in a climate where their irresponsibility has no consequences. In fact, this is a self-feeding cycle: the more politicians are stripped of authority, the greater their incentive to become extreme: 1. They do not have enough ability to make change, so they prefer to focus on making noise. 2. Irresponsibility and demagoguery carry no cost, since in any case the legal system blocks them from carrying them out. This causes the opposing camp to be horrified by the coarsening of the elected officials and to rush to annex more and more authority to itself in order “to save from the lion and the bear,” which allows the elected officials to become even more extreme—and so on and on without end. This has already brought the whole public atmosphere to the brink of ruin, and it will only get worse if it is not stopped.
That’s all for this evening, in the hope that someone survived to the end.
I read part of the column and not all of it. Regarding the override clause, you argue that the government will be able to rule without judicial review and harm minorities. I heard an answer to this from Simcha Rothman when he was asked about it in an interview with Shaul Amsterdamski, and he replied that there are several mechanisms that will protect the minority. After all, we saw in the previous government the power of a minority to block 61 MKs. In addition, there are elections and legislative proposals in the Knesset. In your opinion, is that enough balance to pass the override clause?
In addition, even if those mechanisms are not enough, this is a problem that must be solved, and it is not reasonable to say that because for some reason we are unable to solve the problem we will create a bigger problem, namely the ability to strike down laws and harm majority rule.
One more thing: your claim that Minister Regev gives more power to the government by wanting to allow a minister to remain an MK is ridiculous. After all, these are puppets on strings who in any case will do whatever they’re told in order to get the benefits of being an MK, so at least she spared the taxpayers the need to fund them.
What is the problem with that?
What is really incomprehensible is how Rabbi Michi does not notice these simple truths. After all, what Yariv Levin is doing is simply returning the situation to the period before Aharon Barak. What happened then? It was like that for 40 years or more (without the reasonableness doctrine and without striking down laws and without political intervention), and nothing happened to anyone. Did Rabbi Michi have problems with that situation then? Why then was he not afraid that someone would have problems with the situation? They simply did not come to terms with right-wing rule and decided to supervise it. It’s nice that Rabbi Michi does not want a government over him that has too much power. That’s why there is a Knesset with 120 members and not rule by one person. And if 61 come out unanimously against 59, who are also unanimous because the people are divided, then suddenly there is some sort of one-man rule here? And what would happen if all 120 decided unanimously? Does he think that some external system would then solve the problem?
And how will the right ever be able to carry out its policy without the High Court shackling it? How exactly? Why is everything permitted to the left via the High Court? (On the important matters, not all the other trifles. Like the disengagement, for example. There, for some reason, the High Court did not intervene in putting Sharon on trial because the “people” wanted it.) A system that was not elected by the people and will not be elected by them in the future, with values that do not match those of the majority (the absolute majority), will in the end decide what policy the government can and cannot carry out? There is no balance here at all, and there never will be; only one of these systems will rule.
The one who disqualifies others does so with his own defect. How Rabbi Michi, because of hatred of Bibi—anti-Bibism—misses such simple aspects and commits the very sin of which he accuses Gadi Taub—who in this case has no sin at all, as stated (that is, even from the overall picture no problem emerges that did not exist beforehand. The government can always become tyrannical and there is no mechanism that can prevent that except a revolt by the people).
If Levin or Rothman were required to address your post on its merits and your arguments, they would answer you in two words: “You’re a leftist.”
Just as he answered Hayut: “You joined Lapid-Gantz.”
In my opinion they are preparing the ground for dramatic moves—annexation or something of the sort.
We may be smart,
but we can’t really invent something that doesn’t exist.
A government doing whatever it likes without any boundary-setter, while we rely on the people to replace it in elections, does not exist in any democratic country.
It absolutely does exist in second- and third-world countries and in dictatorships,
and that tells you where we will deteriorate to…
That was not the situation with the High Court in the past.
You really are not familiar with the details.
This is something that did not exist in Israel
and does not exist anywhere that is called a democracy.
Again, I won’t be able to analyze every paragraph of the column (most of which I actually agree with), but a few brief comments:
1. The claim that the Supreme Court is “restrained” has no basis whatsoever. The sophisticated and cunning Barak did indeed boil the frog gradually (as in the famous parable), but his less clever and power-drunk successors lost all restraint, and the rate of High Court interventions in matters not its own has risen exponentially in recent years.
2. In this context it is worth remembering that the question is not only how many laws and decisions the High Court actually struck down, but also how many laws or decisions never even came up for discussion (or came up and were immediately dropped) because the legal advisers warned that “this won’t pass the High Court.” That is, the effect of the High Court’s usurpation of authority is far broader than what appears on the surface.
3. In all democratic countries (except Israel and India), the selection of judges is entirely political and entrusted to politicians in the legislature. The claim that this creates a court politically biased to one side is wrong twice over. First, that is how it should be (I’ll elaborate on that another time). Second, the claim itself is factually wrong and stems from a static perspective. If one takes the political dynamic into account, changes in government also bring changes in the character of the judges selected, and in the long run (in fact, the medium term) representational balance is preserved, as experience in all the truly democratic countries of the world teaches.
4. The reasonableness doctrine is invalid in any composition and under any constellation, because it is impossible to formulate a clear code that defines it. It cannot be that a court should strike down a perfectly legal decision on the basis of a doctrine that has no definition (similar to the offense of “breach of trust” that we inherited from the British Mandate, where only after you have been convicted do you actually know why, and senior jurists have for decades demanded that it be erased from the statute books). “Reasonableness” is a sanitized word for political ideology, and it is not “reasonable” for a court to invalidate legally on the basis of the judges’ political ideology. If something is “unreasonable,” it is more reasonable to leave the decision on the matter to the voters.
5. What works in Zimbabwe and in Canada will work here too. We do not have different political genetics, and the false legend that “the Knesset will be able to do whatever it wants” must be shattered once and for all. (It is hard to believe there are intelligent people who believe it; it seems more like a claim raised out of a belief that the public is stupid.) What protects us from government tyranny is in no way a piece of paper called a “constitution” or a “High Court ruling.” Maximilien Robespierre passed in 1789 (if I remember correctly) an astonishingly liberal constitution, but he was not satisfied and in 1792 and 1793 (again, to the best of my memory) passed two more constitutions, each more and more liberal—truly delightful to the eye. A few months after passing the last one, he suspended it and began the well-known Reign of Terror, and the rest is history. I recommend everyone also read the Soviet constitution (drafted by Lenin and Stalin) and Saddam Hussein’s Iraqi constitution. Compared to them, the much-praised American constitution looks like a terrifyingly outdated and reactionary document. So what?
6. Indeed—so what protects us? Not the constitution, and not the courts. What protects the citizen in his state is what protects the state in its world—the balance of terror and power (contrary to Hobbes, but there is no room to elaborate). Neither the UN Charter nor any “international law” are responsible for the fact that the State of Israel still exists, but rather the IDF, which thwarted several attempts to throw it into the sea. By the same token, why are redheads not being slaughtered? There are two possible answers: (a) so far they have not annoyed anyone enough for someone to want to slaughter them (unlikely). (b) the balance of power in society deters the haters of redheads from trying to carry out their scheme. If some redhead-hating demagogue arises and accumulates enough political and military power—no constitution or court will stop him.
7. It is also worth recalling in this context that when democratic governments (!!!) felt sufficiently secure, they simply thumbed their noses at the courts. Thus Presidents Jackson, Lincoln, and Hoover “thumbed their noses” at explicit rulings of the American Supreme Court, and the phenomenon has also been observed more than once in Japan and in other Western countries (even in West German “Yekkeland”). In Israel, Deputy Attorney General Yehudit Karp wrote a report on some ten (if I recall correctly) High Court rulings that Israeli governments “thumbed their noses” at. (The most famous is the ruling ordering the government to return the displaced residents of Iqrit and Biram to their homes. They are still waiting.)
8. The assumption that we must be protected from politicians and only the High Court will do so is embarrassingly foolish in its naivete. The High Court, which arrogated to itself powers to strike down laws “to protect minorities,” joyfully accepted the prosecution’s collection of blatant lies in order to authorize the ethnic cleansing of the northern Negev and northern Samaria (“disengagement” in foreign parlance), which came into being solely to save Sharon from a prison cell (according to the testimony of Cheshin and Abramovich). But it struck down the law meant to authorize “Channel 7” on pitiful and embarrassing grounds, and likewise the laws meant to combat the flood of infiltrators from Africa (stricter laws than these were enacted in impeccably democratic countries such as Australia, Japan, and others).
9. And in general—who will protect the redheads if the High Court accepts the petition of the Movement for the Quality of Black Hair and orders them destroyed? On what is the assumption based that this cannot happen? Why, only recently the court approved a confession to murder extracted under torture straight out of the manuals of the Inquisition, the Gestapo, and the KGB, and convicted a man of murder on that basis even though apart from that confession there is not a shred of objective evidence against him (I read the ruling. A disgrace and an insult to intelligence).
10. There is much more to remark on regarding the many mistakes in the column (“there are no three branches in Israel,” “the prime minister decides everything,” etc.—a spectacular display of basic misunderstanding), but I have no time right now.
(Friendly advice: although you tend to prattle on in your columns about matters of which you haven’t the slightest understanding, set yourself a limit so as not to become a laughingstock. According to your own approach, you should have forgotten the High Court’s absurd natural-gas-framework ruling in which the High Court outdid itself in stupid nonsense. This is the same High Court that allowed an unelected caretaker government to hand over a vast economic and territorial area to an enemy state controlled by a terrorist organization just days before the election, without the matter even being brought for discussion in the Knesset, and to appoint a chief of staff, but prohibited a caretaker government from the other political side from appointing a police commissioner. Beinisch at the time claimed that a caretaker government had no authority to appoint judges, forgetting that she herself had been appointed by a caretaker government. And the examples of hypocrisy and corruption in the Supreme Court are innumerable. See Kalman Liebskind’s important columns.)
Indeed, the mother of all sins is the ability to amend a Basic Law by a regular majority, which gives every prime minister power above the constitution—as long as the rest of the coalition goes along with it. Until a few years ago that power was limited at least by the remnants of respect for the system and for its stability on the part of politicians and the public. Then the system itself disappointed through a succession of election campaigns and gave legitimacy to ad hoc changes to Basic Law: The Government—and once a person commits a transgression and repeats it, it becomes to him as if permitted.
The reasonableness doctrine will be abolished, basic laws, the Pythagorean theorem, an a fortiori inference, Snell’s law, the musical note re, the words yes no black white.
Shabbat shalom.
I meant the musical note re (do re mi etc.)
Don’t talk nonsense. Why is the High Court allowed to do whatever it wants when it is not elected by the people at all? With all due respect, this is simply your desire to rule over the people and tell them what to think and what to do. You have no trust in the people? Your problem. Nobody is holding you here by force. What is happening right now is not democracy but a dictatorship of the left. If so, I prefer a dictatorship of the right. I am not interested in what happens in all the Western countries if they are like this too. They too are not really democratic.
Nobody needs you to safeguard individual rights. The people will know how to manage on their own without you. In the meantime, you only protect the individual rights of the enemies of the Jewish people. When it comes to Jews, there are no rights. There is no freedom of speech. At the slightest peep someone lets out, they demand a criminal investigation be opened.
Insolent, obtuse, and lacking self-awareness. A bunch of communists in disguise.
Phil,
This is a common argument but plainly mistaken. The court has far less power and influence over our lives than the government does. At most it can strike down one law or another, and even then the Knesset can always enact a private override clause for that specific law. That is the existing situation already now. By contrast, the government can make masses of decisions every day—and does so—which can change every aspect of our lives. There is no symmetry whatsoever. This is not a question of whether to give power to the government or to the court. The government has built-in power, and that is the starting point of the discussion. What is needed are local checks and balances, and that is what the court (or some other body) is supposed to do.
As for your claims as a Haredi, this is really the height of chutzpah (though characteristic of Haredim). You belong to a privileged minority that receives outrageous special rights here without any interference, and then you whine that the court does not let you continue robbing all of us in peace (that is, it does not express your values of robbing and abusing the public). The next stage will presumably be a claim by the party of prisoners and criminals arguing that the court must be limited because it screws them over by putting them in jail. Oops, I didn’t notice—there already is such a party and such a claim.
You, as a Haredi, feel that your values are being trampled. So what should all the secular people and LGBT people say, whose values are trampled again and again by you and your friends with the backing of the High Court? It seems to me that you have read rulings very selectively.
By the way, if that group of parasites had integrated into the economy and into legal studies, for example (which has been happening in recent years, though usually in crooked ways), they certainly could also have integrated into the legal system and influenced it. But they do not want to pay the price; they only want to whine and demand that others solve the problem for them. Just like the Palestinians.
Immanuel,
I promise you that you still won’t understand. You are simply incapable of it. Yariv Levin is not returning the situation to the period before Barak. You simply do not know what you are talking about (as usual with you). Barak did not invent the reasonableness doctrine, nor was he the first to use it. And by the way, in that period people’s basic rights were indeed trampled (such as freedom of expression, work for anyone who wasn’t a Mapainik or a Histadrut member), and in general, in the early years of the state the system was in formation, and it progresses. So retreating backward to that “perfect” period is a stale joke.
And we haven’t even begun talking about people disqualifying others because of their own defect. But with someone who belongs to a cult, one cannot talk reasonably.
Just a reminder that according to section 9A of Basic Law: The Knesset, in order to extend the term of the Knesset beyond a regular term, a majority of 80 Knesset members is required—which does not prevent Michi the great jurist from declaring the High Court our protector against Bibi the Chancellor.
By the way, on the other side there is nothing preventing the High Court from deciding that the President of the Court should serve in that office until the end of his days because the law providing otherwise violates Basic Law: Human Dignity and Liberty, and therefore the reasonable person understands that limiting the tenure of the President of the Supreme Court is unlawful.
We survived, we survived.
The court acts in an imperialistic way because the Knesset did not define its sphere for it. That is an empty slogan. I promise you that even when the reasonableness doctrine is abolished, the court will apply it in its imperialistic way (it will simply interpret laws expansively), and rightly so. Someone has to balance the gang in power here.
The intervention is always in one direction for a very simple reason: because the government is in the hands of the right, and therefore the decisions under discussion in court are made by it. When there is a left-wing government here (which probably won’t happen in the near future), the intervention will be to the other side. To say that the intervention is always to the left and therefore biased is the same failure and short-sightedness that lead to some of the mistakes in this discussion.
The comparison between what will happen under the reform and what is happening today can no longer be made. Though all the signs indicate that it will only get worse. In fact, one can already see it today, as the new coalition relieves itself on all of us from the springboard in mad hubris that only proves how necessary the balance is.
If Hayut or Barak were required to address your post on its merits and your arguments, they would answer you in four words: “The reasonable person thinks otherwise.”
Actually they would add: “Your opinion is illegal because it contradicts the Basic Law: Human Dignity and Liberty,” exactly as they answered regarding the expulsion of thousands of Jews—ah, wait, actually not..
There is no taint here at all, since the proceeding is being conducted by the left, not by the people or their representatives. Thank God that by accusing him they finally forced him to stop flattering or fearing the left (at least on this issue, I hope; he still hasn’t kicked the habit).
And the criminal minister (whom I do not like at all) was also accused by the left.
At least the directors we pay will carry out the minister’s policy, and then we will know what the correct policy is, rather than a collection of managers who make the decisions and determine policy under the guise of democracy. Dictatorship of the bureaucrats. The inheritance of the Histadrut.
And by the very fact that you mentioned “gatekeepers” (what a joke), you already gave yourself away. A kind of dictators. The High Court too has enormous contempt for public money—even more than the politicians.
Are you made of lies? How can one be so obtuse?
These are utter nonsense. What we saw in the previous term was that the minority in the Knesset needed violence (against coalition MKs: Matan Kahana, Silman, Bennett) and bribery (see Silman) in order to bring down the government. That is not the Knesset’s power, nor is it balance. On the contrary, what we saw there shows just how little balance there is, and that is why such steps were required. There is not the slightest shred of balance from the Knesset, because in the State of Israel there simply is no Knesset.
The ability to strike down laws is not a problem at all. By the way, even the conservatives do not argue that. What they argue is that the court did so without authority, but they do not claim that it is bad for a court to strike down laws. Those really are nonsense claims.
Regev did not propose abolishing the Norwegian law. She proposed making those MKs completely subordinate to ministers. That way there will be a completely neutralized Knesset with more salary recipients (both ministers and MKs). The current situation is that even if there is a Norwegian MK, he is at least independent vis-à-vis the ministers like any other MK (to whatever extent the Knesset is independent at all). The problem with her idiotic proposal is that the Norwegian MKs would become even more like puppets on strings than the rest of the MKs, who are already fairly much like that. One can abolish the Norwegian phenomenon, but if one is already creating Norwegian MKs, one should give them independence and not leave them under the threat that the minister will return to the Knesset whenever he wishes and throw them out. Alternatively, it would be worthwhile to invest two more seconds of thought before confidently declaring my claims ridiculous when you have no idea what you’re talking about.
Neither these nor those are substantive claims, and it also doesn’t seem to me that this adds anything to the discussion.
I wonder what the High Court would do if the government arrested 688 (!!!!) minor regime-opponents, including 14-year-old girls, and held them until the end of proceedings for demonstrating against government policy.
https://m.ynet.co.il/Articles/3124997
Or in other words, if the government executes the redheads, I as a redhead would not rely on the High Court (even the activist kind under Barak) to save me. (Unless I were Eliad Shraga.)
We saw what happened in Gush Katif….
And I have no idea why you want to live in a country where the government is considered a gang. Maybe you should propose yourself as an enlightened dictator (in the past I would have supported you).
Avi, may he live long and well,
I can only remind you that Basic Law: The Government also stipulates that there is one prime minister, sets the number of ministers, and various other things that are now being changed on a whim. There is no principled obstacle to the current gang—or some future one—changing that law too for a local interest. To understand that you do not need to be a great jurist like yourself, only not to be under the influence of drugs.
And on the other hand, the possibility of the High Court determining an extension of tenure for the president is a legal joke that cannot happen and will not happen. That is roughly like arguing that the High Court will decide that human dignity and liberty require the President of the Supreme Court to be 1.73 meters tall. The difference between the court and the Knesset is that the court is supposed to interpret the law, even if sometimes it takes some liberty in such interpretation. But the Knesset legislates laws, and there there is not even a theoretical limitation against legislating something against redheads. This is yet another example of comparisons suitable for drugged people.
As a reminder, only now are they discussing changing the seniority system, and it is clear to everyone that the court can at most protest, but the decision lies with the Knesset (that is, the government).
In my youth I believed the hollow slogans they fed me about the High Court in civics lessons, but after I accumulated many hours in the High Court (probably more basketball hours than Michi accumulated in his life), I came to see that this evil, rotten, and corrupt institution is nothing but a hall of lies, a dwelling of falsehood, and a sanctuary of wickedness. Levin’s reform is a minimalist compromise. (I would prefer the D9.)
If I had to list all the wrongs of the wicked High Court, no fax machine could suffice. Still, one small sample, which ridicules all those who claim the High Court is the fortress of the downtrodden and oppressed. Suppose you claim that my house is built on your land—what would you do? Well, in a proper state you would turn to the district court, present documents, testimony, and other evidence, and I would do the same; a proper evidentiary process with examinations and demands would take place, and in the end the court would issue a ruling that could be appealed. At first the left-wing organizations and Arabs went through this channel, and guess what—they lost time and again!
Then, in the satanic mind of one of the devil’s advocates, the brilliant idea dawned that orderly legal procedure is for weak people and Jews only. But if a Jewish settlement beyond the Green Line has been established, all that is needed is for an NGO flush with foreign money, representing an “unknown petitioner,” to petition the High Court claiming that the settlement is built on “private land.” Do not fear—the High Court will not throw the petitioners, who are meddling in a quarrel not their own, down all the stairs, but rather the wretched settlers, who at best—“beyond the letter of the law”—will be allowed to file a page-limited affidavit (since they are not parties to the petition!!!!). For a deviation of half a meter (which was not proven, but merely “declared” in the petitioners’ affidavits and was not examined through investigations and inquiries as is customary in trial courts), the High Court ordered the erasure of an entire legally built neighborhood (“Netiv HaAvot”) with all the required permits! The residents’ proposal to demolish the encroachment (again—50 centimeters!!!) and leave the other houses standing was rejected with contempt, rebuke, and costs imposed. Nine houses were destroyed for nothing and dozens of families lost their world because of a petition by an NGO funded with German money and representing an “unknown petitioner” to a court that has no jurisdiction whatsoever over land disputes, and without the residents being given their day in court!!!
This was not an isolated case. This is the ruling line in left-wing organizations’ petitions to the High Court. It is a planned scheme to which the High Court justices devoted themselves with delight—after all, they are “not political,” heaven forbid one should imagine such a thing.
Who will protect us from those who protect us? And who could be so deeply and permanently foolish as to believe that this institution indeed protects us “without fear or favor”?
And according to your reasoning—how would the High Court prevent this? After all, the Knesset can simply delete the High Court chapter from Basic Law: The Judiciary. Why doesn’t it do so?
Mordechai, I find it hard to accept advice like that from someone who mostly prattles on with allegedly learned facts and claims that clearly show he does not know what exactly they mean or what their significance is.
I will say only one thing, because as usual you did not read the column or did not understand it (I can never decide which of the two possibilities is true in your case). I have quite a bit of criticism of the High Court, and I also wrote that. I also know that governments do not always obey the law, and therefore a constitution is not the solution (by the way, I also wrote that). You may be surprised, but I also understand that no system of checks and balances will prevent every problematic result. Thank you that you are so astonished by all these profound understandings of mine. Surely you didn’t think I understood all this.
But precisely for that reason, all the examples you brought here (some of which I agree with and some very much not) are beside the point. The question is not whether the High Court is balanced, nor whether the government is absolute righteousness. The discussion is also not looking for a balance that will solve all problems and protect us hermetically. I am not dealing with those questions but with the question of what the correct balance is between the branches of government in Israel (and not in Zimbabwe). If you could manage to understand the subject of the discussion before proceeding to pour all your frustrations on us, you could have saved yourself and us a lot of time. So here is one piece of advice from me: next time, even if you are very angry, stop for a moment, take a breath, think for a second about what the discussion is about (it’s not that hard; I’m sure that if you try you can manage), and only then write us your fascinating reflections.
I still don’t understand. And I really am trying.
You say the court doesn’t have as much power as it seems to me. Fine, so if that’s the case, then it’s not such a big deal if I strip it of that power, right?
I assume you would not want that because you argue that something is needed to balance the government’s power, and I agree completely. My question is only why should I agree that this “balance” be carried out by a group of people who represent not my values but yours?
As for your claims about my being Haredi, I must say your attitude is very saddening. I understand that in your opinion, because I belong to a “privileged minority that receives special rights without interference,” I no longer have any legitimacy to protest injustices done to me. Apparently, in your opinion, if I come to the police station to complain that something was stolen from me, the investigator’s response should be that this thief was only trying to prevent all the Haredim from robbing us peacefully or something like that.
You ask what LGBT people should say, whose values are trampled again and again by members of Knesset. That is a good question. The difference is only that the mechanism that discriminates against LGBT people is the mechanism that gives extra weight to majority values. Those are rules of the game that are far from perfect, but at least they grant a certain amount of power to the minority too. By contrast, the people trampling my values do not represent the majority; they simply impose things on me in the name of their values because they can. Like any dictator (and then they have the gall to claim that they care about “freedom”).
You may be surprised, but I too am far from sure that you really understand everything you write. Even when you scatter here and there hollow slogans like “the High Court is indeed not perfect,” etc., I find it hard to decide whether this is ceremonial and unconscious recitation, or whether you are knowingly cooperating with Esther Hayut’s talking points, in the sense of “Any lie that does not begin with a little truth does not stand in the end” (Rashi following Hazal, Numbers 13:27). For if you really understood what you and I wrote above, you would not return to spewing all the usual propaganda like a foolish disciple reciting Torah thoughts from his guru’s pamphlets. But Shabbat is approaching, my wife, may she live, is calling me, and I must shut down the computer. My words and yours are before the readers, and the chooser will choose.
Rabbi Michi,
This is throwing dust in people’s eyes. I already read here in the comments that the reasonableness doctrine did exist (apparently in relation to local authorities and administrative matters). It’s just that then the government and the High Court, of course, went together. And truly I have nothing but what my eyes see, and I see a bunch of feeble-minded dictators who do not know their place. In the period before Barak they did know their place. That is exactly what I am talking about. And I did indeed remember Mapai’s abuses. For some reason nobody really thought of fixing the court back then. They simply changed the government (after it had overfilled the measure) and a redeemer came to Zion. But those same Mapai people have still not rested on their laurels. It’s as simple as that. The whole discussion that wraps itself in formal aspects is simply a deception. Your hatred of the right blinds you. For some reason I do not remember what fears you had in the past (before Barak) from the unbalanced power of the government. I don’t know whether the system was perfect, but for some reason back then there was full trust in the courts. So apparently it was many times better than what exists now.
By the way, regarding the “cult” to which I belong. I already said that I have a loathing of the left. But I chose to belong to it precisely because of these things (actually I did not choose to belong to it; it happened by itself. I do not know who its guru is). No formal aspect will cover that up. One can discuss balance between branches of government if the whole people is right-wing (that is, believes in the Jewish people and prefers its own members to foreigners). In the current situation, I want no foreigners in any governing institution. And the left are foreigners.
And about belonging to a cult—again, the one who disqualifies others does so with his own defect.
I read the article with great interest, and I very much agree with its spirit. One question still bothers me: what was here until March 1992, when the two Basic Laws that formed the basis for the constitutional revolution were enacted—a revolution whose manner of enactment was scandalous in itself? Did they kill all the blondes here? Were people snatched in the middle of the night into black cars with tinted windows? Did prime ministers declare themselves emperors? None of this is meant to claim that there is no logic at all in the constitutional revolution, but only to reject the shrieks about the end of democracy.
P.S. I heard this week Roni Bar-On, no devoted Bibist, say that Aharon Barak used to invite petitioners to file specific petitions in order to cook up the constitutional revolution in exactly the stages and dosage he wanted.
P.P.S. I read in a number of places that Aharon Barak (a Holocaust survivor who was smuggled out of the Kovno Ghetto at age 4 in a sack of potatoes) said that if what happened could happen to the Germans who gave the world Goethe, Rilke, Kant, and Beethoven, then it could certainly happen to Jews who lack a democratic tradition, and the Supreme Court is the barrier. Leaving aside for a moment the absurdity of this claim, which is a subject for an article in itself (none of this is to claim that Jews cannot go mad and do foolish things), again we are dealing with a philosopher-king in his own eyes who will educate the little potential Nazis and prevent them from doing foolish things. Enlightened tyranny of that sort frightens me no less than any majority in the Knesset.
I too would go with the D9. If only the judges were wicked. The problem is that they are not self-aware, which is even worse. Only that can explain their astonishing obtuseness. They are the biblical example of fools. I will go over the book of Proverbs again on Shabbat and see whether everything that applies to fools also applies to them.
I actually have no criticism of the High Court because it is beneath all criticism. Therefore it needs a D9.
“They are now discussing changing the seniority system, and it is clear to everyone that the court can at most protest but the decision lies with the Knesset”
You made my grandmother laugh, and Esther Hayut too—just as it was clear to everyone a few years ago that the High Court was not supposed to strike down laws, and just as it was clear a year ago that the High Court does not strike down Basic Laws. What is clear to you is not clear to Esther Hayut. From the statements of Amit Segal and Yonit, I understand that it was leaked to them that the High Court does not quite understand what you understand.
Abolishing “re” would erase three wonderful violin concertos (Beethoven, Brahms, and Sibelius). An eminently justified cause for World War III.
“The difference between the court and the Knesset is that the court is supposed to interpret the law, even if sometimes it takes some liberty in such interpretation. But the Knesset legislates laws, and there there is not even a theoretical limitation against legislating something against redheads. This is yet another example of comparisons suitable for drugged people”
Yariv Levin would sign every word; Aharon Barak less so.
Just a question, without the drugged people: if the role of the court is only to interpret the law, what is the source in law of the court’s authority to strike down any law?
First of all, there definitely were things, and there still are things. So far there has indeed been no disaster, neither before those laws nor after them, neither without the High Court nor with it. I also assume that no real disaster is expected. But if we wait until the very worst happens, it will already be too late. The whole idea in designing a system of government is to try to prevent what may happen. The extreme cases are meant to sharpen the problem, and the problem definitely lies in problematic decisions even if they are not extreme. My criticism is not based on fear that they will decide to shoot all the redheads here. The redhead example is meant to illustrate the unreasonable power that we leave in the government’s hands.
I do not know how reliable Roni Bar-On is and whether he knows what he is talking about (there are things in his past that raise doubts regarding his credibility. I mean Bar-On–Hebron, of course). And in general, I did not come here to defend Aharon Barak. After all, I myself wrote in the column here that in my opinion he is manipulative and obtuse. So what? How is that relevant to the principled discussion?
Now a general remark not directed only at this comment. Many of the responses here seem to me truly Pavlovian. As if people do not read what I write, see a word that is not directed against the ultimate enemy but against their idol, and immediately fire away to defend the government and attack the High Court. After all, I criticized the High Court in this column, and not for the first time, harshly—its statements and conduct, and Aharon Barak in particular. So what relevance do your claims about Barak behaving improperly have? It is quite amazing that even if I write a completely balanced column (in my view), each side is offended as though I had shot its mother. It seems impossible to conduct a substantive discussion here.
I very much hope the sample of commenters here is not representative, otherwise our situation is quite grim. I assume (and take comfort in this) that the sane majority among those who read the column simply do not comment, because they understand that these are balanced and sensible things that are hard to disagree with (of course, the details are open to debate), and that is why most of the talkbacks here seem of such a low level that they insult the intelligence. It seems that the Greek chorus of the High Court’s opposition and Bibi lovers emerged from their burrows, somebody moved their cheese, and then they start firing straight in all directions without thinking—relevant claims and mainly irrelevant ones, whose connection to what I wrote in the column is rather limited (in many cases they repeat my own words with a question mark at the end as if they had raised a counterargument). It seems that for a moment we turned into YNET, and that is a shame.
The moment the High Court expanded standing + broad legal interpretation, it became a de facto legislative branch.
Want the death penalty for redheads? Why do you need a new law?! There is already a death penalty for treason.
+ a wink to a petition by black-haired Eliad Shraga
+ a broad interpretation of the essence of treason via red hair (it dazzles IDF soldiers, for example), and there you have a de facto death law for redheads.
=death to redheads
Want a VAT exemption for residents of Rehavia?
There is already a 0% VAT law in Eilat.
+ an interpretation that the exemption was given because of a location of high priority to the state
= VAT exemption for Rehavia
Want a new car every 3 years for Sudanese?
There is such a benefit for state employees.
+ an interpretation that the benefit was given because of their contribution to maintaining orderly life in the state
+ standing for Sudanese
= a car for all Sudanese
Why does the theoretical limitation that does not exist for the Knesset exist for the Supreme Court sitting as a legislature?
So here’s the thing:
1. You de facto voted in all the recent election campaigns in favor of the High Court and the legal system de facto (it wasn’t that important to you compared to the price of having a government with Haredim—and also Hardalim maybe?), so I can’t really say whether the column is balanced. Besides, one doesn’t always need to be balanced; one needs to be right. Who cares that you criticized Aharon Barak if you are unwilling to lift a finger to change the system? In the meantime it looks as though you are simply trying to weaken, in terms of public consciousness, those who currently represent the Jewish people. After all, you argued that there was no reason to vote for the right-wing parties because they wouldn’t change anything in the legal system. Obviously all the protests are because the left lost power and not because of some sudden fear of dictatorship.
All the commenters like me have the feeling (like Taub) that a mechanism for supervising the government exists, for some reason, only when the government is on the right. When the government is on the left, then for some reason the High Court finds no place to intervene in what is happening and “it is not within its authority.” The problem is that the supposedly conservative judges who enter there try, as I feel it, to curry favor with their colleagues, so at this rate the court will simply remain the stronghold of the left forever. It will take years in the normal way to replace all those judges, and until then no real right-wing policy that prefers the good of the Jewish people over foreigners (when that is justified, of course) will be able to be carried out. Please explain how one can remove Aharon Barak’s disciples and all the activist judges from there, appoint legally conservative judges, and afterwards we can talk about judicial review of the government. I believe that the moment there is complete right-wing rule in the court, then there can be fair judicial review. The only ones whose rights are liable to be harmed as a result are the Arabs, who deserve no rights by virtue of being enemies of the Jewish people. In short, there is no problem right now with the overall picture. Later, when we carry out a purge of Aharon Barak’s disciples (“the Jews shall rule over those that hate them”), and the land will see and fear, then we will legislate מחדש what is needed. Before that there is nothing to talk about.
I cannot stop myself from returning again and again to thank you for your enlightening words. Go forth and succeed.
The rabbi claims that the hysteria from the left is exaggerated and that this is not the end of democracy, and within the column the rabbi explains how dangerous it is to transfer all authority to the executive branch and about the famous Chancellor Law—isn’t that a contradiction?
You could have added regarding the “separation” between the government and the Knesset that unlike what happens in other countries, an MK can almost never vote against his party’s proposals…
True. I read the column and it is excellent, I completely agree.
column*
Hello Rabbi,
I agreed with almost everything, except for the fact that you noted that perhaps it is preferable to remain in the situation where there is a biased High Court as long as it restrains the government. Such a bias is outrageous and does not really allow proper governance.
Why not say that it is preferable to free the Knesset? Meaning: the coalition and opposition would not be obligated to vote according to their camp, and they would be given the right to vote according to conscience.
It is clear to me that you too would prefer this, and I think it would be better to push in that direction generally, regardless of whether the legal system is changed or not.
Ah, and by the way I suggest dropping this pose of “sanity.” That is a trait of empty people. And if anything, the whole left is insane. And really, thank you so very much that you have “criticism of the High Court.” What luck. If the example Mordechai brought, that story with the settlement, is true, then we are really dealing with evil here, and such a biased court cannot exist under any circumstances and everything must be done to overthrow it. I have a feeling that the “balance” and “reason” here are only, as mentioned above, because “Any lie that does not begin with a little truth does not stand in the end.” According to that story, saying that the High Court is not perfect is simply throwing dust in people’s eyes.
It is not a contradiction because in my estimation such decisions are not likely to be made, but the fact that they are possible points to a problematic structure. Beyond that, the reform has not yet taken shape and its details are still to be shaped, so it is hard to take a concrete position. I am fairly sure that on most of the clauses there will be some moderation of some of the proposals.
If you are worried about a Chancellor Law, then even in the current situation it is possible. One simply has to pass the reform and then pass the law. From that perspective, all democracy is one great risk. There is no way to lock every possible loophole hermetically by administrative means. This is a discussion about the proper checks and balances.
There are many alternatives that can be considered, and I also wrote that if people want to establish another institution to provide the balance (a constitutional court, an upper house, and the like), that is certainly a possible option and probably a better one than what exists now. Still, in the current situation there is no such institution, and the absence of any balance is more problematic than the balance we have today.
The issue of party and coalition discipline is indeed problematic, but those who have been there claim there is no alternative and that it is hard to run things without it. One has to remember that no MK was elected to the Knesset by name individually. Elections are between parties, and therefore there is some logic in a party determining policy and not giving its members freedom to vote on certain issues.
Eli,
I completely agree. More than that, within the conflict-of-interest arrangement there is an instruction forbidding Bibi to deal with questions concerning the legal system. A bad joke that only indicates how absurd the current situation is and how fitting it would have been for the High Court to throw him to the winds and not approve his candidacy because of extreme unreasonableness.
After all, by virtue of his office this scoundrel is paying bribes to witnesses in his trial before all our eyes, by means of appointments to positions (since the prime minister is responsible for all positions here). Thus, for example, he appoints Tzachi Hanegbi as head of the National Security Council, extends Gilad Erdan’s term in Washington, and both of these are witnesses in his trial. Has such a thing ever been heard? Ah, I almost forgot: Yariv Levin, who was appointed minister of justice, is also a witness in the trial. In addition, he removes the legal adviser of the Prime Minister’s Office from cabinet meetings—the one who caused him trouble. Quite apart from the question of whether the trial is justified or not and what its outcome will be, this situation is utterly impossible.
Bibi of course is not supposed to deal with the legal system, but he is the prime minister and head of the coalition that is now leading a revolution in that field. So he is not involved? This is an intolerable situation, which only Bibi addicts like Immanuel, Mordechai, and their friends here, who follow Bibi like blind men up a chimney, are unable to discern through the clouds of fog in which they drift.
Sorry for the delay. I forgot to reply. Although I don’t see why there is anything to answer here. Everything has already been answered.
It is certainly terrible to strip it of the little power it has, since that is the whole point of balance: that each side does not have unlimited power, and if you deprive it of the little power it has, you create an unbalanced situation. You don’t need an extended school day or core curriculum studies to understand that.
As I wrote, one can certainly propose better mechanisms of balance (a constitutional court, an upper house), but as long as those do not exist, such a balance is preferable in my eyes to no balance and leaving all the power in the government’s hands.
As for your being Haredi, it is not my attitude that ought to sadden you but Haredi conduct, which brings about that attitude. It is like being sorry that a thief goes to jail instead of being sorry that he stole.
No one here is harming your rights, and neither is the High Court. No one here said that one may harm Haredim or steal from them, or that they do not deserve legal protection. It is simply that fortunately for you, the enlightened public is not Haredi and does not behave toward you the way you behave toward everyone else—and would behave even more if you had the power. This is classic Haredi whining, a fixed Haredi tactic whose purpose is to arouse empathy as though any action they do not like and that does not grant them their special privileges is anti-Semitism. Not bringing them into the coalition is anti-Semitism (since their right to rob us all is granted them by law). Tax on disposables or beverages is anti-Semitism. Not subsidizing a corrupt and parasitic education system that perpetuates your being a burden on the public is anti-Semitism.
What the High Court does—and not nearly enough—is try somewhat to moderate (not abolish) the Haredim’s special privileges in the state. Apart from extreme cases (such as, for example, banning separate events in public facilities), no one has harmed the Haredim in any way, which is really impossible to say about you. Your whining is a splendid expression of this tactic, which usually relies on absurd analogies that even third-grade Talmudic pilpul has long since surpassed. For some reason, all the sharp-minded analytical learning that occupies them all day evaporates when the discussion turns to Haredi special privileges.
So if you are really trying to understand, as you wrote, I expect a bit more effort.
A note about the reasonableness doctrine:
I think one cannot do without such a doctrine at all, and all the more so in a corrupt country like ours.
Prof. Yitzhak Zamir wrote about the doctrine:
“The reasonableness doctrine is not unique to Israel, nor is there any basis to the claim that it is inconsistent with democratic principles or harms the separation of powers. The reasonableness doctrine exists and is applied today as well in England, Canada, and India. There are even countries in which the legislature itself established the reasonableness doctrine in law, for example Australia, and there are countries that established in law an even broader doctrine, including unreasonableness. Thus, for example, the United States, where it was determined that the court is authorized to invalidate any governmental decision if it is arbitrary or involves an abuse of the discretion granted to the government. Germany went even further, and not only does the law permit the court to strike down a governmental decision if it is unreasonable, but it authorizes it to strike down a governmental decision if it violates morality. In fact, it seems there is no democratic state in the world where the court cannot strike down unreasonable governmental decisions, if not under the heading of reasonableness then under another heading, such as proportionality. And it seems there is no state in the world where there is a law abolishing the reasonableness doctrine. So why specifically in Israel?”
And I would add: if in orderly countries, where Boris Johnson resigns just because he violated a COVID regulation, give me a thousand reasonableness doctrines in a crazy country like ours, with scoundrels like Bibi and Deri in leadership.
You needn’t have written that. Almost all your messages on this site are nothing but a proposal to drop the issue of sanity and reasonableness.
Thank you for the response.
I must say that I esteem you very highly and even see you as my outstanding rabbi on various subjects, but I am forced to admit that on this matter I do not understand your words despite having made a proper effort.
From what you wrote I understood that you claim it is preferable to have balance from one side rather than no balance at all on the government’s power. And I wonder whether you would say that even if the balancing body were the Council of Torah Sages of Shas. I am quite convinced that in such a case you would see the absurdity.
The attack on the Haredim is beside the point. Even if all your criticism of third-grade learning, budget-plundering, whining, and so forth is correct, it is still unrelated to the discussion. If there is a public that is mistaken and you coerce it from outside, that may be a smart step and perhaps even morally justified, but it is certainly not a democratic step. I, upon whom this coercion is being exercised, naturally think that you are the one who is mistaken, and I do not understand why I should respect your opinion in this case.
If the only alternative for balance were the Council of Torah Sages, I would prefer it over a government without balance. Absolutely yes. But that comparison is foolish, because the High Court protects the Haredim in many matters, and therefore portraying it as something one-sided that always acts against the Haredim is idiotic. Naturally, what gets publicized are the rulings that provoke controversy and anger. By the way, I harshly criticize quite a few High Court rulings, and in that sense too, from my perspective, the High Court is not very different from the Council of Torah Sages. Still, I do not want one-man rule.
I explained to you that the High Court protects the Haredim like anyone else, indeed even more so. What it sometimes interferes with (very much) is the robbery they try to carry out. If preventing robbery is anti-democratic, then the party of criminals that comes out against the courts would also be right in the name of democracy. Anyone who tries to create an unequal situation under the cover of democracy can claim that the mechanisms that prevent this are not democratic. Therefore the claims about robbery and so forth are very relevant. For some reason, you prefer to define democracy as majority rule (leaving aside the semantics for the moment, as I explained in the column), but I do not agree. Preventing injustice and the tyranny of either the majority or the minority is also part of the game. I would be glad to hear what you would say when there is a government here that imposes extra taxes on Haredim, and drafts Haredim for five years instead of three, and the majority of the public supports it. Would the claim that opposition to that is undemocratic and improper be acceptable to you? There—we have returned to the question of analytical learning and analogies.
If a government supports discrimination against the Haredi public as you wrote, of course I will oppose it with all my might. But as long as those are the laws, I will respect them exactly as I expect every citizen to do. (Of course, up to a certain point.)
But there is one thing I will not do: I will not claim that this government should be balanced by a committee made up of the Council of Torah Sages that strikes down decisions it doesn’t like.
I do not see democracy as majority rule, as you wrote. The important element in my opinion is that the sovereign is the people, including the minority. Therefore, when the minority (or majority) imposes its view from above through a group of unelected people, that is aristocracy through and through.
And of course, even if all the High Court’s rulings were only in favor of the Haredim, that would still be aristocracy in my eyes.
Well. You are not biased at all. Why do you think judges have more reasonable judgment than politicians? I would trust Bibi’s judgment (he is actually a weak man) a hundred times more than Hayut’s or Barak’s or the other feeble-minded activists’. Up to now it is actually the High Court that has shown more poor judgment and injustice than any of the governments we have had here. If in Germany the politicians decided that judges are wiser and have better judgment, good for them. There is no power in the world that can protect against arbitrariness except the people themselves. Hold elections every two years if you want.
A. So if I understand you correctly, if the reform is enacted exactly as currently proposed, then that is the end of democracy or close to it.
B. I think the public gives credit to reforms as long as they fit within its criteria of democracy, but if it understands that the reforms being made will turn the state from democratic into dictatorial, it will not support the government (except for the Bibists, who will always support whatever he does), and therefore there is a difference between carrying out an innocent reform that the public does not see as the end of democracy and carrying out a reform for the sake of a Chancellor Law, where the public criticism would be much greater.
I wanted to ask about this sentence:
“Of course, if you add to this an override clause by a majority of 61, the meaning is that any coalition (since there is no coalition with fewer than 61) will be able to do whatever it wants.”
I seem to recall that in the past you spoke out against restrictions on the size of the majority required to pass laws, arguing that this creates a situation where the minority rules the majority. That is, if I understand correctly, you support requiring only a regular majority of 61 for an override clause, not some special majority. In addition, I recall that you previously spoke out against Israel’s method of appointing judges and said that the public should appoint the judges, not that they should appoint themselves. So my question is: if you were to propose a reform of the legal system, in what way would it differ from Levin’s reform?
Immanuel, each time I hesitate whether to answer you according to your folly, because obviously talking to you is like talking to a wall. You write nonsense in a wonderfully decisive way and refuse to accept any correction or comment; you do not address what is written to you and keep repeating your nonsense again and again as if it were the word of God. So here, in any case, is a response, just to help you look in the mirror.
I did not write anywhere that judges have more reasonable judgment than politicians, so do not put words in my mouth. I did not write that because I do not believe it, but beyond that, that is also not the claim we are discussing. And that is for two reasons:
A. The difference we are dealing with here is not the question of whose judgment is preferable, but the question of the interests and biases of these two sides.
But that is the minor difference. Your basic logical problem is in the next clause:
B. I am not arguing in favor of giving absolute power either to judges or to politicians. The whole idea of balance (and I know this is beyond you) is that there are two powers precisely because the assumption is that neither of them is absolutely more qualified, wiser, stronger, or less biased than the other, and therefore some sort of balance is appropriate so that one limits the other. When talking about balance, one does not mean that it is preferable to give power to judges rather than politicians, but that it is preferable to divide power between two bodies neither of which is perfect.
I now humbly await the next batch of insults, and I am also quite convinced that it too will not be connected to the discussion. And yes, I am a damned leftist, an idiot living in a movie who does not understand that the left and the court are damned heretics against the divinity of Bibi and Deri.
That wasn’t a reply to you but to Anonymous. Maybe the placement of the reply got messed up.
What I argued is that a constitution or a law requiring a special majority is a problematic mechanism, because it binds future generations and gives a minority the power to veto the majority. That is indeed problematic, but I am not sure it is illegitimate, because perhaps the stability of a society requires a framework that cannot easily be changed (our own eyes see this through the hasty changing of Basic Laws nowadays).
But here the discussion is not about the future but about the present. The question is not binding the hands of the public in the future, but balance between the government and the court in the present. Therefore, in this case I see no obstacle at all to requiring a special majority, say 70. Let us assume for the sake of discussion that a majority of 61 arose in the Knesset to cancel a High Court decision, and that the override law requires a majority of 70 MKs. In such a case the Knesset will not be able to nullify the High Court’s nullification, and it will remain in force. Still no injustice has occurred here, because there is no coercion of the majority by the minority. Note that in addition to the minority in the Knesset there is also the court joining the minority against the majority in the Knesset. Therefore this is entirely reasonable and legitimate. Of this the halakhah says: “Join the minority to the presumption, and it is half and half” (the presumption joins the minority and balances the majority).
I am not familiar with all the details of Levin’s reform, and I think they will undergo various refinements during the legislative process, as always happens. Proposing a comprehensive reform requires sitting over the issue and clarifying the details, which I have not done, and therefore I cannot give you a detailed proposal here. But the general lines are quite clear and not very far from Levin’s.
In my opinion, the appointment of legal advisers should be done by the attorney general, not by the ministers, but their advice should not be binding, only advisory. Alternatively, let them be appointed by the ministers, but then one should need court approval or the legal opinion of some authorized body in order to deviate from their advice.
One must understand that although there is always the possibility of judicial review, as the supporters of the reform claim, and therefore it would suffice for advisers merely to advise and not decide, this is a bit detached from reality. First, on that logic there is no need for legal advisers at all (a minister who wants one can hire one). Second, the government makes hundreds of decisions every day, and it is not practical to go to the High Court over each such decision. I experienced this personally in Yeruham, where the head of the local council did whatever he wanted, including actions that were criminal and blatantly contrary to law, and we had solid and unequivocal evidence in hand, and yet there was still no practical way to stop it. We do not have the resources or ability to petition the High Court ten times a day. And that is over one small local council. What would you say about a government that makes hundreds of decisions every day? It is not practical to turn to a judicial body over every such decision, most of which are hardly known to anyone at all. Therefore there is no choice but to place a legal adviser who will examine things in real time and have some teeth.
An override clause should require a significant majority, say 70 MKs, but a court decision that tries to alter a law or an administrative decision should be made by a special majority and an expanded panel. Striking down a law should be done by a full panel of the Supreme Court and by a special majority (say 12 out of 15), and then 70 MKs would be required to override it. That stabilizes the system on both sides. Neither the government can easily do whatever it likes, nor the court. Today I thought that perhaps it would be good to require, for an override, a majority in the Knesset that also includes opposition members. For example, 65 MKs, but among them at least five opposition members. Alternatively, always 3 beyond the coalition. Or alternatively, a majority of 61 would suffice, but among them there must be at least 5 from the opposition. One should note that this is the meaning of saying that in the balance between the branches the relevant counterpart to the court is the Knesset, not the government. After all, a law is the Knesset’s business, not the government’s, and therefore the body that faces the court regarding the nullification of a law should be the Knesset, not the government. That is as opposed to nullifying an administrative decision, where this is a confrontation with the government, but there, in my opinion, it is not right at all to create a mechanism of override, only one of legislation.
As for the reasonableness doctrine, I would entrust this—and perhaps the confrontations and balances with the other branches altogether—to a constitutional court or upper house elected for life (and one can add to it, as with the House of Lords), and which owes nothing to anyone.
But as noted, all this requires clarification, and it is not serious to lay out a truly detailed proposal without such clarification. Nor do I see a coalition formulating a reform that gives power to the opposition. After all, we live here in our small and tendentious state.
No. You are not understanding me correctly. I do not know what is currently being proposed, and I am not sure that you do. There are different formulations of the various clauses, and everything will still undergo refinement during the legislative process. If one takes the most extreme formulations of all the clauses, that will create a problematic situation.
What about appointing judges? Who should sit on the committee?
In my opinion, the current situation is not bad. No side has an automatic majority. But there is logic in replacing the Bar Association representatives with public representatives. If there were a constitutional institution like the one I proposed, perhaps it would be better for it to appoint judges, especially Supreme Court justices.
By the way, I heard a very wise and encouraging statement on the radio a few days ago from Yuval Elbashan: the current situation of a clash between the branches is the essence of democracy, and it is very good that it is happening. Each side is trying to pull in its own direction, and thus perhaps a better balance will emerge. When there are no struggles and no discourse, frustrations and imbalance are created. The utopia is that this would be done in an orderly discussion and with arguments, but that is a pipe dream. So a forceful clash is the democratic alternative.
In Israel, unlike many democratic countries, there is no constitution, and there is no separation between the executive and legislative branches, and therefore from the outset the government—whether under Mapai or under Likud—has always had excessive power. Moreover, Israeli governments make use of the Emergency Defense Regulations, so Israel has never really been a true democracy. Until 1977 there was an army (Palmach-Mapai) that had a state, and since then, more or less, a party (Likud) that has a state and craves more and more power.
Is it right that in a democratic state the prime minister’s term should not be time-limited? Should ministers be appointed mainly according to professional considerations or only according to political considerations? Should judges be appointed according to political agendas? Is it proper that someone who has never worked for his livelihood should be finance minister, or that someone who has never really served in the army should be defense minister, or that someone who has never been a teacher should be education minister? Is everything the elected representatives or the mob want necessarily fit? Who is supposed to protect minority rights? Can democracy not, God forbid, turn into dictatorship? Are there not some threshold conditions of good character, education, responsibility, and concern for the public at large that are required in order to be public emissaries and hold state office?
I am beginning to get used to this charming method: open with a learned and emphatic declaration, though unsupported, that Israel has never really been a democracy, and then immediately move on to a series of piercing questions, though somewhat pathetic, about our time, which are also mostly devoid of even the slightest connection to the current situation.
It would be worthwhile to put up this hysterical message on a sign next Saturday night. Maybe it will get a place of honor in Haaretz.
I did not write that Israel was not a democracy, but that it was not a true democracy, that is, a full democracy, and it may be that most modern democracies are not true democracies either. In any event, your belligerence is out of place; the right to write sharply is not reserved only to you. In any case, the straight path is neither left nor right. The words of the wise are heard in calmness.
Anyone who talks about returning the legal system to what it was 40 years ago should remember that 40 years ago, and certainly before that, most Knesset members, whether on the right or the left, were modest and honest people. And yet from the founding of the state Menachem Begin believed that the legal system should be strengthened, and therefore defended its honor and independence. Thus Menachem Begin wrote: “We learned that an elected parliamentary majority can be an instrument in the hands of a ruling group and a cover for its tyranny. Therefore the people, if they choose by elections, must also establish their rights vis-à-vis the legislature, lest the majority therein, which serves the government more than it supervises it, be able to deprive them of those rights. This can be achieved only by way of the ‘supremacy of law,’ that is to say, by establishing the civil liberties as a ‘basic law’ or ‘supreme law,’ and granting the panel of judges authority to nullify the validity of a law that contradicts the basic law and contradicts civil liberties… History teaches that so long as a tyrannical government has not succeeded in subduing the law beneath it… so long as there exists a ‘public atmosphere’ in favor of the sanctity of the judge’s conscience and the independence of the law—the judges knew how to stand up to rulers and to prefer the command of their conscience to pressure from the authorities, or their hidden instruction; they knew how to overcome fear of persecution, did not ‘show favoritism,’ were not moved by side considerations, and rendered a just judgment.”
I completely agree.
A. The system was in formation, and I do not think the discussion of what democracy is is merely semantic; anyone who listened carefully to Hayut understood that this discussion has an extremely serious implication: whether Levin’s extreme reform contradicts the basic method of government and therefore will be annulled by the High Court.
Prof. Barak Medina from the Hebrew University estimates that if the Knesset does indeed approve the legislation, or even most of it, the High Court will determine that these are unconstitutional amendments and strike them down. “Here we are dealing with arrangements whose significance is the cancellation of separation of powers and judicial oversight, and therefore they exceed the Knesset’s authority and are likely to be declared void.”
And a general remark: it does not seem far-fetched to me at all to claim that democracy is first and foremost a system of government with a certain set of values and not merely majority rule. Moreover, the values precede the majority. After all, the very system of majority rule and the democratic voting mechanism are based on the values of equality and human dignity. A regime that does not respect these values is not democratic; the democratic electoral mechanism is only a derivative of those values that stand at the basis of the system (that is why homophobes like Smotrich exploit the democratic system abusively without accepting the values that justify it).
And the High Court is a mechanism that is supposed to ensure that the values at the basis of the system are upheld (by the way, the High Court intervened here when equality was violated long before Barak’s revolution, even though equality was not anchored as a value in law, because it is obvious that if we operate under a democratic system, then equality is a binding value).
Therefore I think that actions to restrict LGBT people or a blatantly unequal agenda for the “benefit” of the Haredim (such as exemption from military service with no security justification) are non-democratic steps, and as such it is entirely proper that they be struck down by the High Court even if the value of equality is not anchored in legislation. We went to elections in which the Bibist, the Haredi, and the leftist who subsidizes them have equal votes. Otherwise, there is not necessarily any justification for the democratic electoral mechanism.
One should distinguish between two things: between the claim that the Supreme Court does not fairly represent the full range of public opinion and therefore part of the public feels alienated from it, and the claim that the High Court should be subject to the will of the majority of the public as expressed in the last election. The first claim is a fair and democratic claim. The second is a tyrannical anti-democratic demand.
In my humble opinion, in order to correct the situation, the Judicial Appointments Committee should have the following composition: one third rabbinical judges, one third law professors—from all the universities, and one third public representatives—members of municipalities and local councils, and all of them should be chosen by lottery every few years. The committee would propose four new appointments to the High Court, from among whom the High Court would choose three, thereby giving it a limited veto right to correct distortions. Overall, this would ensure the independence of the judiciary, improve the composition and quality of the High Court, and thereby strengthen public confidence in it.
With all due respect, the argument that the High Court (and the attorneys general and their deputies and representatives) balance to the left because the government is right-wing, and that if the government were left-wing they would balance to the right, is factually mistaken.
(At least the first part; the second part is a hypothetical statement that cannot be empirically disproved, but can be logically disproved.) The examples of this are so numerous and familiar that there is no point in repeating them again.
One can think that the legal system fulfills an important function in balancing the government without resorting to arguments that border on gaslighting.
The reality is that the legal system too behaves in a forceful and tendentious way, and many times also contrary to law and justice.
And by the way, of all the points I raised, you did not address the very one about which I was most curious to hear your opinion—I really believe that transferring authority to elected representatives will force them to take responsibility, present policy, and be judged according to results. More than that—in my opinion it will fundamentally change Israel’s bloc-political map: contrary to what many think, support for Netanyahu is not despite the trial but because of it. In a hypothetical world in which Sa’ar had been indicted on the same charges and Netanyahu had declared that “Gideon is mortgaging the state in order to cancel the trial,” Netanyahu would have finished with 6 seats and Sa’ar with 30. The only common denominator (or at least the central one) of the Bibi bloc is the desire for these reforms. The day after this legislation passes, there will be no obstacle to a coalition of Likud with Lapid, Smotrich with Sa’ar, or the Haredim with Gantz. Convenient as it is for everyone to ignore this, this is precisely the issue that defines the political camps today, and specifically taking this issue off the agenda, even more than an early retirement for Bibi, is what can get the system out of the mud.
Democracy is of no importance. Justice (and wisdom) is what matters. Therefore there is no importance to discussing what democracy is, what it includes, and what it does not.
A bit of historical background:
The Supreme Court was established in 1948, and five judges were selected for it, proposed by the Minister of Justice and the provisional government: Moshe Smoira—an outstanding legal mind and chairman of the Jewish Agency’s court, Yitzhak Olshan—a successful lawyer engaged in public affairs, Menachem Dunkelblum—president of the Association of Jewish Lawyers in the Land of Israel, Shlomo Zalman Cheshin—a district judge, and Rabbi Simha Assaf—a Torah scholar, lecturer on Geonic and rabbinic literature, and dean of the Faculty of Humanities at the Hebrew University.
According to Professor Daniel Friedman, law was a marginal issue for the pioneers of the Second Aliyah, and most politicians looked down on judges and their standing. Yet within a few short years, thanks to the personalities of the judges selected for the Supreme Court, thanks to the way they conducted themselves, and thanks to their thoughtful and balanced rulings, the standing of the Supreme Court became very well established.
In 1952, Dr. Dov Yosef, then Minister of Justice, criticized what he saw as overly lenient rulings and proposed limiting judicial discretion, saying: “Are they holy winged beings descended from heaven, who know what is right and what is not right? They are human beings like me, they can err like me, and I am permitted to criticize their rulings.” At the time, the Herut newspaper wrote: “Yosef has clearly defined what the Mapai leadership has long been contemplating: how to take control of the judiciary and turn it into an obedient instrument in the hands of the regime.” In response to Yosef’s remarks, Moshe Smoira, President of the Supreme Court, sent a protest letter to the Speaker of the Knesset in which he wrote: “He (the minister) has departed entirely from the traditional Jewish view of the judge’s role, a view that found expression in many well-known sayings of the Sages, and moreover the minister’s speech involved degradation of the court… The judges of Israel will fulfill their role faithfully according to the best of their understanding and conscience, subject only to the authority of the law.” Many MKs and ministers attacked Smoira’s letter, but Dov Yosef paid a courtesy visit to President Smoira’s office and the tension between them was eased.
In 1953, the Judges Law was enacted, serving as the basis for judicial independence. The Mapai leadership under Ben-Gurion, during its years in power, despite demands by lawyers from their own party to increase the small number of Mapai members among the judges and jurists in state service, did not act to enlarge that number. For reasons of statesmanship, in most years the Ministry of Justice was given to other parties. Ben-Gurion did not interfere in the legal system and supported the efforts of Yaakov Shimshon Shapira, the first attorney general, to fortify its independent and strong standing and to instill political and public recognition of its role as one of the highest state importance.
In 1962, Dov Yosef was once again Minister of Justice, and this time he clashed with Attorney General Gideon Hausner. Yosef regarded the attorney general as an official subordinate to the minister, whereas Hausner argued that the attorney general had independent discretion, free of any public or governmental pressure. As a result of the dispute, the Agranat Commission was established under Justice Shimon Agranat, which determined that the general authority over prosecutions, decisions on appeals, and stays of proceedings belongs to the attorney general, whose discretion in these matters must be independent and not subordinate to the instructions of the Minister of Justice. Even though the commission ruled against Dov Yosef’s view, and though he was one of Ben-Gurion’s loyalists, Ben-Gurion and his government adopted its conclusions by a large majority.
Ben-Gurion wrote: “The freedom of the individual and the freedom of the people do not depend on declarations of liberty, nor even on a constitution—even the best constitution in the world—but on one fundamental thing: the rule of law. Only in a state in which everyone—citizen, soldier, official, minister, legislator, judge, and policeman—is subject to the law and acts according to the law; only in a state where there is no arbitrariness—not of ministers and governors, not of representatives of the people and state officials, and not of private individuals and political leaders—only in such a state is freedom guaranteed to the individual and to the many, to the person and to the people. In a state where there is no supremacy of law, there is no freedom, even if its constitution incorporates the most vigorous and progressive charter of liberties in the world.”
And he wrote: “Does freedom mean that everyone may do whatever is right in his own eyes? In my opinion this is not freedom but anarchy. In a true regime of freedom there is indeed a need to respect the rights of the collective, the rights of the people and the state, its security, its police, its status, its needs, and only the law can set the boundary between freedom—not that which a certain group monopolizes for itself, but the freedom of every citizen—and the rights of others; without the rule of law there is no freedom. And the law must apply to each and every one without exception. The President of the State, the Prime Minister, and every one of the ministers may do by virtue of their office only what the law permits them to do.”
And he wrote: “In a state where the law rules, the giving of the law is in the hands of the people; the supervision and safeguarding of the law are in the hands of the judge. The people should not be limited in making laws. Of course, the people too can err, but a free people, unbound, will correct the error. By contrast, guarding the law, interpreting the law, examining the applicability of the law to the specific case in life—these are in the hands of the judge, who is dependent on no person or government, but only on his conscience and understanding.”
And he wrote: “And there can be no rule of law without democratic rule. The people respect the laws and take their yoke upon themselves willingly if the laws are made with their consent, arise from their needs, and are bound to their will. In a land where the people are not free to make their own laws through their representatives chosen in free elections—there is no rule of law there, but a regime of tyrants and arbitrariness. If the ruler who makes the laws is not dependent on the people—the law is not the creation of free human beings, and where there is no freedom there is no rule of law. The unmistakable sign of democracy is not rule for the people, but rule by the people.”
And he wrote: “The State of Israel will not endure without the rule of law and without democratic rule. These two are bound together. This is the fundamental legal problem of the state, and not the problem of a constitution or laws… Every totalitarian regime is a deadly poison for Jews and for the Jewish people, whether physically or spiritually. Such regimes doom the existence of the Jews or the existence of Judaism, or both together. The State of Israel too would have no existence under such a regime, if only because the connection between it and the Jewish people in the Diaspora would be severed.”
And he wrote: “The Jews as Jews can exist only in a land where there is freedom for the minority, freedom of elections, freedom of thought, freedom of movement, freedom to oppose the government within the framework of the law—that is, in a democratic regime… In a democratic regime the majority decides, and the will of the majority is the law of the state and binds the minority; however, the right of the minority to express its view, to think as it wishes, to vote according to what it sees fit, is not impaired. In a democratic regime the majority does not decide matters of faith, thought, art, and science. Human thought in a democracy is not subject to law or government. Even if a certain opinion is accepted by the whole people, an individual may think differently and fight for his view, even if not a single person supports it. In a democratic regime there is no prohibition on criticism and debate, and every citizen in the state has full freedom to choose his representatives as he wishes.”
This is the legacy of Ben-Gurion and the founders of the state.
Continued:
In contrast to Ben-Gurion, Menachem Begin from the outset demanded the enactment of a constitution, and aspired to give the legal system independence and authority vis-à-vis the executive branch.
Begin said: “Because we do not have a constitution, and because we were prevented from bringing before the Knesset a complete legal document—today, after many years of discussions and renewed discussions, of reservations, objections, and decisions—we have received a fragmented law, cut off from the legal wholeness of a state’s laws, full of details that are unimportant, and lacking details that are important.”
And he said: “If the constituent assembly enacts a constitution, the government will not be able to do whatever comes into its mind. Today the government stands above the law. The majority in the House does not control the government or guide it; on the contrary, the government imposes its will on the majority. If the government wants it, the law is passed, and if it wants the law repealed, it is repealed… There is here a ruling caste that stands above the law, because there is no constitution to limit it.”
And he said: “It is a mistake to think that rule by the people, or in foreign parlance—‘democracy’—is expressed only in the existence of a majority and a minority. Certainly the majority decides and the minority accepts its opinion even if it protests, but it turns to the people, and one day the minority becomes the majority and the majority the minority, and so on. This is the formal side of rule by the people. But rule by the people must be continuous; meaning, it cannot be unlimited. Even if it is elected, it cannot be unlimited rule, and it declares that it will not be unlimited. Of its own free will it limits itself.”
And he said: “In this regard one of the great thinkers, Hamilton, sounded a warning, saying: the concentration of all powers—the legislative, executive, and judicial—in the same hands, whether those are the hands of one man, or of a few, or of many, whether inherited, self-appointed, or elected—in all these cases such concentration can rightly be described as the very definition of tyranny.”
And he said: “To prevent this, we would propose that the House, in the law concerning itself, should of its own free will limit its powers and declare that the Knesset shall enact no law involving restriction of freedom of expression, whether written or oral, or restriction of association, and other fundamental rights of the citizen and person, the details of which we will bring before the Constitution, Law and Justice Committee.”
And he wrote: “If the people established for itself by means of its representatives a basic law defining its status and the reciprocal relations of the legislative, executive, and judicial branches; defining not only the rights and powers but also the duties of the representatives of the government; defining not only his duties but also the rights of the citizen and his political, spiritual, and economic liberties; after the people has established for itself such a basic constitution, then all other laws, and not only orders of the executive government, must conform and be adapted to the basic laws, and cannot contradict them.”
And he wrote: “The supremacy of law will be expressed בכך that an independent panel of judges will be granted not only the authority to determine, in the event of a complaint, the legality or justice of an administrative order or regulation on the part of executive institutions, but also the authority to render judgment, in the event of a complaint, on whether laws enacted by the legislature (enacted, as we have seen, under considerable or decisive influence of the government) conform to the basic law or contradict the rights of the citizen established therein. The right to submit a complaint regarding ‘laws’ should be granted to every citizen, if he sees himself harmed by them directly or indirectly, and justice shall be done.”
And he said: “Our constitution must not be a collection of sections and formulas that determine only a democratic form of government; it must guarantee the people a democratic content of life. Therefore we shall demand constitutional guarantees for the separation of the powers of the state. Concentration of powers in one hand, or even in one branch, constitutes a gravest danger to the freedom of the citizen. It is a law, a law not to be transgressed, that no prime minister or minister can also be legislator and judge. The excuse of an ‘emergency situation’ does not justify a totalitarian concentration of the triple rule in the state, a concentration that in effect places the rulers above the law, whereas in a free state the law must be the supreme ruler, and all citizens without exception are subject to it, whatever their station in the state may be.”
And he said: “Law and the judge must be independent of the ruler, even if he was chosen by the people; for the emissaries and their representatives are not entitled to interfere in the course of justice and influence the measure of judgment, and the various governmental institutions are not entitled to take into their hands any judicial authority, any authority of rendering judgment. These are the rules of the uniqueness and independence of the law.”
And he said: “Justice, ladies and gentlemen, is a heavenly and earthly concept, divine and human. There is justice in its abstraction and justice in its simplicity… Justice in its abstraction is like a star in the sky: you cannot attain it, but you must aspire to it… From this point of view, the concept tolerates no adjective. The English are accustomed to say ‘British justice,’ usually favorably, sometimes unfavorably. Communists are inclined to speak of ‘social justice.’ But justice, in its abstraction, tolerates neither a national nor a class adjective. In this respect it resembles liberty, which also tolerates no adjective beside it… Liberty is human, and cannot be distinguished nationally or territorially. And so it is with justice. Either it exists or it does not; either it is manifested or it is suppressed.”
The judges today are arrogant and certainly not upright. And childish…… As far as I’m concerned, they should not decide what human dignity is and what its rights are. There is no authority without responsibility. Let them hold direct elections once every four years. A judge who does not satisfy the public (judges unjustly) should go home. What do you say?
The need to separate law from politics requires, in my humble opinion, separating the Supreme Court, which would deal with criminal and civil appeals from the district courts, from the “High Court of Justice,” which would deal with judicial review of the state authorities on questions of authority and proper procedure (and, as I proposed above, in parallel to an “upper house” of the legislature that could also examine the reasonableness of decisions).
With blessings, Yifa”or
The review of judges by the “complaints commissioner” should also be strengthened by appointing several “commissioners” and giving their decisions some “teeth.”
First, let me open with due respect to the venue by saying that the column is exemplary and does an excellent job of defining all the players on the field and descending into the details with superb reasoning. So the conclusion emerging from your article is that although each separate clause of the reform is worthy (and even called for), nevertheless their combination presents a problem in the balance between the branches.
So I have several comments (which may perhaps have been written in the column, but in my opinion are worthy of more reflection). And in my view there is a way to carry out the reform in all three of its clauses, and still some balance will remain.
1) First, you assume here as an implicit axiom that when a prime minister governs almost alone—this is monarchy. I differ; for every four years there is the festival of democracy, namely elections, and on that day the people state whom they desire to sit on the throne and who will sit in the opposition. When there is a clear majority (certainly among the Jewish public) of 64 seats—that chooses a prime minister on the basis of an agenda he commits to before the election, at least in its broad ideas (whether in economics, security, or social structure), and on whose basis he was elected to govern—this is democracy at its best.
2) Regarding the claim that there is no balance between the branches, what is in fact beautiful about the aforementioned electoral mechanism is that every four years the people speak once again, and assuming the current government proved itself in its term and the people wish to give it a mandate for another term of governance—so it will be. And if the people are disappointed and think the current government is unfit to govern—then it will be thrown onto the opposition benches (see “the government of change”). Thus it is clear that the very weight of election day is a condition that ought to balance politicians, who cannot do the next day whatever they like. (For example, Ayelet Shaked was completely wiped out in the current election; and it is as clear as the sun that Bennett too, had he run, would have been the same. For the reason she did not pass is the common denominator between him and her.) This is the beauty of having to answer to the public—it subordinates politicians to the will of the voter, unlike any arbitrary scheme that might enter their hearts.
It seems to me that this alone reduces politicians’ autonomy, at least on the psychological level.
3) And even if you say that despite the argument I brought above, all sorts of flea-like politicians will indeed arise and propose extreme proposals, common sense dictates that if the proposal feels unbalanced—it will not pass even with 61, because after all there is a great deal of diversity in every coalition whatsoever. The homogeneity exists only in the big principles, but thank God that on the elementary principles there are indeed disagreements between every party and every other party (and often many disagreements even within each party itself).
4) And after all that, even on the possibility that there really will be a consensus to legislate an extreme law (say one discriminating against redheads), and even if we do not consider public opinion that would boomerang in the next election, and even if there is agreement among 61 very different minds on that same extreme legislation;
at least to the best of my knowledge, in the current evolving outline of Levin’s legal reform it is stated that in the event of unanimous agreement by all the High Court judges, the law will still be annulled on grounds of extreme unreasonableness (and there is no override clause against unanimity).
And the “reasonableness doctrine” is not needed at all, because there already was and is an answer that blocks extremism, namely the clause of “extreme unreasonableness,” which exists and is effective in restraining and balancing the legislative branch. The role of the judicial branch was always to balance the legislative, not, heaven forbid, to rule (it has no mandate from the public for that).
And I trust a court of people with common sense, in which collective agreement will dwell in a place of extreme immoderation, and for me that is necessary.
It turns out that the reasonableness doctrine adds nothing at all in terms of protection against extremism; there was already a constitutional response to that before Aharon Barak and after him.
But on the other hand, there is indeed very good reason to delete the “reasonableness doctrine,” because it can already reach brakes that are not legitimate. After all, every notion of reasonableness rests on ethical presuppositions, and that is beyond the judge’s role (as Rabbi Akiva said, “there is no compassion in judgment”). Judges are not philosophers of ethics, but experts only in the sea of law. And as you yourself wrote when analyzing the reasonableness doctrine separately.
5) Two questions remain, namely what the method of “appointing judges” will be, and what about the “override clause.” In my opinion these two clauses are indeed more problematic from the perspective of the balance between the branches.
Therefore reason dictates that the override clause should pass with 65 MKs and not fewer, for all the reasons you wrote so well. After all, every narrow coalition has 61, and here too there is much room for blackmail by the remaining MKs (as is famous in the political districts of our land). And it seems that it would be good if one could draw at least one, two, or three fingers from the opposition to join the override. Therefore an override by 65 sounds eminently reasonable.
So regarding two clauses I wrote: first, complete deletion of the reasonableness doctrine. Second, an override clause at 65.
And again, there is no override in a case of unanimous agreement due to “extreme unreasonableness,” as above (and the balance remains standing).
6) And what about the third clause of “appointing judges”?
That is already, in my view, a much more complicated issue, because all the arguments on every side are correct. On the one hand, if the coalition chooses judges on its behalf, then we fear political bias in the heart of the judge (and perhaps only for that reason he would not agree to strike down a law lacking extreme reasonableness). On the other hand, the existing situation too, where judges appoint judges, looks a bit like a fixed game lacking transparency (because 15 Aharon Baraks can conspire among themselves regarding any law and strike it down for “extreme unreasonableness” in their opinion).
Personally I have no conclusion on the matter, but I do have a proposal regarding the appointment of judges [!]: I suggest holding a “referendum” (legal elections) only among people who have a degree in law. This already seems to me a democratic and fair proposal on the one hand, but also one that is not politically biased.
This is a long column and I haven’t finished reading all of it yet, but I will make one comment about the color changes by Miri Regev.
When Merav Michaeli changed the colors of the Ministry of Transportation, she changed them to the purple used by the Labor Party in its campaigns. When Miri Regev entered the position, she restored the original blue color (which is very similar to the color used by Likud in its campaigns.*). So this is really not a merely spiteful decision, but a rational and logical one, even if corrupt.
*According to my friends, who drew my attention to the color changes, it is not exactly the same color—I find it hard to decide.
In this case, the law sets out the grounds for disqualifying a person from serving as a minister—someone sentenced to imprisonment and someone convicted of an offense involving moral turpitude. And from the affirmative you may infer the negative: someone in whom these conditions are not met is legally qualified to serve as a minister. What is unreasonable about obeying the law and appointing a minister who meets the legal requirements?
With blessings, Yifa”or
Indeed, the High Court’s second reasoning, that Deri undertook in the plea bargain to retire from political life, is worth examining, and perhaps there is something to it.
Even if the judges had authority to engage in “judicial legislation,” there is no place to apply the new norm retroactively. This is the “principle of legality,” which does not allow imposing obligations on a person that are not anchored in guidance openly known to citizens.
With blessings, Yifa”or
Aharon Barak also introduced the flaw of “retroactive legislation” into contract law, which he too subjected to future legal interpretation, thereby creating a situation in which no person knows what his rights and obligations are under the contract he signed, since there is always a fear that a future ruling will come and retroactively insert into the contract an interpretation that none of the drafters or signatories of the contract could have anticipated in advance.
I really have no knowledge in politics or political science. But as a simple person, I always understood the idea of separation of powers to mean that the role of the judiciary is to enforce the laws of the legislature on the population as a whole, and to restrain its power by enforcing the laws on the members of the legislature themselves as well—that is, if there is a corrupt legislator, he too will not be immune from the law. It may very well be that this is a superficial and mistaken understanding, and if so I would be glad for clarification on the matter, but if it is correct, would it not be right to say that indeed one should strip the court of all its powers except for the specific slot of law enforcement, and leave the rest of the powers in the hands of the Knesset and the government? (You may argue against me, as you said, that the Knesset today is not in the desired position of power for it, but assuming it were, would you then agree with my words?
Thank you very much for the response
There is no point in discussing the role of the court in general terms. It depends on the system of government, and in every state it is built a bit differently. One thing is clear: there must always be balance between the branches of government, whether by means of the court, or another branch, or some other way.
“In parentheses I must say that in my view, on the practical plane, that feeling is not entirely justified, because the court usually practices restraint and its interventions are not numerous.”
Regarding this, I think that is not correct. The very fact that the court has the power causes the Knesset and the government themselves to soften and disqualify proposals “that won’t survive the High Court test,” and that is without even referring to the intervention of the legal advisers, which adds even more restraint before the issue even comes up.
Immanuel, you wrote complete nonsense
Although I agree with most of what you wrote, I want to add:
There is something distasteful about a prime minister who is undergoing criminal proceedings leading such a move—especially given that all these years he opposed it.
In addition:
The coalition never misses an opportunity to prove the necessity of the High Court.
Without the knowledge that they would have to stand before the High Court, we would have had a few directors-general with no suitable experience.
There is no serious discussion on the right about appointing a minister who is a convicted criminal.
There is no serious discussion about appointing legal advisers as a political appointment— a few years ago I was a synagogue trustee and wanted municipal funding for synagogue activities. The casualness with which they use our money is appalling. And if the gatekeepers and the ministers are too friendly with one another, corruption will flourish.