Last update - 00:00 17/12/2007
The government should not hide
By Ze'ev Segal
A petition now before the High Court of Justice, which asks the court to order the government to reinforce single-family homes in Sderot, naturally heightens the ongoing debate over the proper limits of the court's involvement in decisions by the other branches of government. The state wants the court to reject the petition, inter alia, because this is a policy issue and hence unsuitable for resolution by the courts.
The decision on the petition, which ought to be made without delay whichever way it falls, will be made in the shadow of a serious disagreement. Justice Minister Daniel Friedmann has publicly proposed amending the Basic Law on the Judiciary to explicitly deprive the court of the right to hear and decide issues of a military-security nature or with budgetary ramifications. A government bill in this spirit is reportedly being drafted.
Attorney General Menachem Mazuz recently issued a press statement in which he objected to legislation that would restrict justiciability in any way, but said he believed the scope of judicial review as currently practiced in Israel merited public debate. In practice, Mazuz has instructed his representatives to argue in court that the justices should not intervene in military-security or foreign policy issues.
The court, for its part, has exercised complete restraint on everything relating to the country's foreign policy and has declined to intervene in petitions against diplomatic agreements. This stance was made clear, inter alia, in its ruling upholding the legality of the law to implement the disengagement. Despite the law's infringement on property rights and human dignity, the justices viewed this infringement as proportionate and as serving an "appropriate purpose," and therefore deemed it constitutional. The court's approach leaves the government and the Knesset considerable room to maneuver, out of an understanding that they are the ones with the authority to make such decisions.
Nevertheless, the court has formulated a clear view that it should not refrain completely from intervening in security matters if these involve disproportionate infringement on individual rights. This approach has led it to intervene in several cases involving the route of the separation fence. In its rulings, the court stressed it was not examining the wisdom of the decision from a security perspective, but only its constitutionality, "as required by the principle of separation of powers."
As it explained in its rulings on the fence, "the military commander decides where, over mountain and plain, the separation fence will run. That is his expertise. We examine whether this route's infringement on local residents is proportionate. That is our expertise." The judicial approach that refuses to treat expressions such as "security considerations" as magic words upsets many people. Yet this approach, as long as it maintains a reasonable balance between security needs and individual rights, is required by the need to protect human rights.
It its May ruling on the appropriate means of fortifying schools in communities near Gaza, the court similarly declared that it would intervene "only rarely, and with restraint," and only in decisions that "fall far outside the realm of reasonability." Justice Dvora Berliner stressed the "exceptional times" and the suffering of residents who live under the threat of Qassam rockets as justifying this exceptional judicial intervention.
The state's claim that the matter is "nonjusticiable," which would forestall any substantive debate on the matter, pushes aside the key question of whether the government's decision on the fortification issue is constitutional. The state admittedly sought to justify its decision on its merits as well, but given a choice, it would prefer that the court not hear petitions on this matter at all. That has been the state's position for many years, but it was rejected as far back as 1980 by then justice Moshe Landau. The justice minister has frequently cited Landau's opinions - but not his ruling on the illegality of the settlement of Elon Moreh.
The proper approach is that a judgment should stand or fall on a single issue: whether or not the government's decision is legal. The government can try to show that its decision on the fortification issue is legal and reasonable, and if it succeeded, the petition would be rejected. But a government that values the welfare of its citizens should not try to hide behind a wall of nonjusticiability, which creates a separation fence between the government and the law.