US President Donald Trump and numerous Likud MKs and ministers believe that the separation of powers means the judiciary should avoid interfering with executive decisions, or with laws passed by the legislature. In other words, they are inclined to belittle the legitimacy of judicial review, under which the courts may review executive and legislative decisions on grounds of unconstitutionality, illegality or unreasonableness.
In Trump’s case the issue came up in connection with his executive order, issued on January 27, suspending the US refugee resettlement program for 120 days, restricting entry to the US from seven Muslim countries for 90 days and suspending Syrian refugee resettlement indefinitely.
When Seattle Federal District Court judge James Robart temporarily blocked the executive order on February 3, Trump tweeted: “The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned!” When on February 9 the San Francisco-based Ninth US Circuit Court of Appeals upheld the lower court’s ruling, Trump’s reaction was that courts seemed to be “so political,” after he had previously implied that in his opinion the courts are biased. The court itself had rejected the administration’s claim that it did not have the authority to review the president’s order.
In Israel the issue of the right of the High Court of Justice to review government policy, as it manifests itself in legislation and policy measures, emerges with growing frequency as Israel’s current government pursues increasingly controversial policies, which even the legal gatekeepers sometimes find difficult to defend. In reaction, members of the opposition are increasingly resorting to the HCJ in an attempt to redress policies that they claim constitute a danger to Israel’s democracy and future. Currently the HCJ is being called upon to review the so called “Regulation Law” that was passed by the Knesset last week, and which the attorney- general has refused to defend in court.
The reactions of the government and its supporters have not been as crass as Trump’s reactions, though especially Bayit Yehudi ministers and MKs have been known to attack High Court justices for issuing rulings critical of the government’s policies (especially in Judea and Samaria), and one MK – Moti Yogev – suggested that a bulldozer should be sent to tear down the court.
Trump accused the American federal courts of being “political” (i.e. liberal), even though the American system ensures that both liberal and conservative judges get appointed over time, with the balance being tilted alternately to one side or the other depending on the identity of the president.
In Israel the argument on the Right is that the system is permanently tilted in direction of the secular, liberal Left, and that as long as the method for selecting new judges is not amended, the bias against religious, conservative judges will continue. It is thus not surprising that there are voices on the Right that would like to change the method of selecting judges, and until that happens limit the ability of the opposition to petition the court on issues on which the Knesset has decided.
While it cannot be ruled out that in future an attempt might be made to force President Trump out of office before his term is over on legal grounds of one sort or another, in Israel Prime Minister Benjamin Netanyahu and his supporters are accusing the opposition is trying to oust him from office by means of a flood of media investigations – some of which have turned into official police examinations and investigations.
Netanyahu and his supporters are arguing that if the opposition wishes to bring down the government and its head and replace them, it should do so by means of elections, and not legal proceedings against the prime minister that resemble a witch hunt.
The question is whether the accumulation of suspicions regarding the conduct of the prime minister and his family, some related to material benefits received from extremely wealthy acquaintances with or without the latter expecting to receive something in return; some having to do with highly questionable media-related deals designed to ensure Netanyahu’s remaining in power indefinitely; yet others related to alleged corruption in Israel’s arms acquisitions, involving persons some of whom are intimates of the prime minister – should simply be set aside until Netanyahu is no longer prime minister.
If Netanyahu were accused of outright criminal offenses, the answer to this question would clearly be negative. The current situation is not clear-cut.
However, despite the fact that each of the suspicions against Netanyahu if taken separately don’t amount to much, action should be taken immediately, because taken together and over time, all these affairs, combined with Netanyahu’s constant proclamations he will remain in office for a long time to come (what other prime minister of a democratic state talks like this?) create a highly disturbing picture.
Contrary to what I wrote two weeks ago, Netanyahu has now started accusing the media of spreading “fake news” in connection with all the examinations and investigations being carried out against him, but without citing a shred of evidence to refute the accusations leveled against him. It is really a question of how the disturbing facts are interpreted. This should be done by the legal authorities, not the lay voters, and the sooner the better.
If the court decides Netanyahu has done no wrong – so be it.