Three Knesset members, Yariv Levin (Likud), Gideon Ezra (Kadima) and Finance Committee Chairman Moshe Gafni (United Torah Judaism) got together to head off through legislation what, in their view, was the improper intervention by the High Court of Justice in matters with economic consequences.
Finance Minister Yuval Steinitz announced that he would consider the MKs’ proposed bill “in a positive light.” About a year ago, Steinitz warned that some High Court rulings reflected “irresponsibility bordering on economic recklessness.” The approach being proposed now could be termed “High Court of Justice, don’t interfere with the economy.”
The High Court rulings that are engendering opposition by legislators have required the state to make major outlays in spending or that deprived the state of tax revenues, the collection of which would be contrary to a reasonable interpretation of the law. Among the rulings, for example, was one in which the court, on the grounds that it violated constitutional rights, invalidated a law allowing the establishment of a privately run prison. Another involved a Supreme Court decision recognizing the deductibility of childcare costs as expenses in the “creation of income” as a necessary interpretation of an income tax authority order.
In addition to court decisions from recent years, one could also add a case from about 15 years ago arising out of a petition by Alice Miller in which the court ruled women could not be barred as applicants for the air force pilots’ course. The court’s position ran contrary to the army’s stance that integrating women pilots would involve an unnecessary expense.
Supreme Court Justice Eliahu Mazza ruled that, in light of the fact that the case involved a claim involving equal opportunity, great weight could not be accorded to budgetary considerations. In that same spirit, Justice Dalia Dorner ruled that “considerations of budgetary feasibility cannot justify a decision by the state that would infringe on a fundamental right.”
Retired Supreme Court Justice Aharon Barak, in his highly important new book “Midatiut b’mishpat” (“Proportionality in Law”), said, in reference to the basis for rulings that impose a financial burden: “Protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden.” As a result, priority should be given to constitutional rights in the division of national resources, even though the relevance of financial considerations and administrative efficiency cannot be discounted.
The approach acknowledging that human rights cost money was behind the High court’s intervention in the defense establishment’s decision on the route of the security barrier when it found that it unduly infringed on the fundamental rights of Palestinians. In practice, any High Court ruling permitting demonstrations despite police opposition imposes a financial burden on the authorities. The court ruled that the police have no right to refrain from providing security at a demonstration solely because of the financial burden. The right to demonstrate is the essence of democracy, and therefore the police have been required, for example, to provide security for the Gay Pride Parade in Jerusalem and at the women’s demonstration against partitions installed during Sukkot on the main street of the ultra-Orthodox Mea She’arim neighborhood, as well as at the demonstration by right-wing Jews in the Arab town of Umm al-Fahm.
The MKs’ proposed bill, which is acceptable to a not-insignificant number of Knesset members, contains the qualification that High Court intervention would be permitted if there are “real deficiencies...that are not the result of policy” and that judicial intervention would be barred only in cases involving the expenditure of more than NIS 5.5 million.
These limitations do not remedy an invalid bill that seeks to infringe on the tradition that the authority of the High Court of Justice is unlimited on all subjects. Passage of the bill, which would require an amendment to the Basic Law on the Judiciary through passage of another Basic Law that would only require a simple majority of MKs, would create a slippery slope. If it is passed, it is reasonable to assume that it will be followed by other bills abridging the High Court’s authority on issues with implications for defense, or involving invalidation of regular laws that are in conflict with constitutional basic laws. All of this is coming at a time when broad judicial review is a central facet of democratic government.
Debate on the bill cannot ignore the fact that, in the current reality, the High Court of Justice is demonstrating excessive judicial restraint and is refraining from intervening in situations that justify it, such as in the case of cuts to old-age benefits or regarding provisions in the Economic Arrangements Law that disproportionately infringe in constitutional rights such as property rights. The prime minister, justice minister and finance minister would do well if they would consider bills in a negative light that seek to free the executive branch of government from the minimum restraints that the High Court of Justice imposes on it from time to time.
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