Tuesday, September 09, 2008

Let's try to make some sense of this week's numerous political developments.

First, the non-story. The police "recommended" indicting Olmert for bribery and various related crimes. If you've watched enough Law and Order, you know that all that happened is that Lieutenant Van Buren has just passed the file over to Jack McCoy. The recommendation is just the police department's way of patting itself on the back for a job well done. An actual indictment is a ways off.

So, in the meantime Olmert is offering the juristocracy a carrot and a stick. The carrot is Ramon's pinui-pitzui proposal. The stick is Friedmann's judicial reform bill.

Let me explain what Friedmann's bill is about.

The authority of courts to strike down legislation as unconstitutional has become a central, though problematic, feature of democracy. Since judicial review of legislation shifts power away from elected representatives, all democracies invoke certain safeguards against abuse of this judicial authority. Thus, in Great Britain, the courts can offer only an advisory opinion that a law violates the (European Union) constitution, but this does not invalidate the law. In France, a parliamentary body, the Conseil Constitutionnel, can rule that a law that has been passed by Parliament is unconstitutional only before it is signed into law. In most other European countries, as well as in the United States, there are judicial bodies that can rule laws unconstitutional, but these bodies are all politically appointed. Moreover, in all countries, there are limitations on what kinds of laws (and administrative acts) the court is prepared to review; certain matters (defense, foreign policy, budget) are universally regarded as non-justiciable. These limitations are generally prudential, not statutory.

The model that is most often discussed in Israel is the Canadian model, which is different than all the above models in some respects. What Canada has in common with the above models is that justices are politically appointed (there are advisory committees, but ultimately the Minister of Justice decides) and certain issues are regarded as non-justiciable. The juristocrats who wish to adopt the Canadian model somehow never show much interest in these aspects, nor are these aspects the subject of this particular proposal of Friedmann (though he is interested also in these issues).

Anyway, the aspect of the Canadian model currently under discussion is what is known in Canada as the "notwithstanding" clause. The idea is that if a law is ruled unconstitutional on certain grounds, Parliament can vote to retain the law, "notwithstanding" the court ruling. (Provincial legislatures also have override power; in fact, the whole idea was a compromise involving provincial autonomy, but never mind.)

The idea of adopting the Canadian model in Israel has its origins in a committee headed by Yaakov Ne'eman for the purpose of drafting a Basic Law on Legislation. (Addendum: Commenter Ben Bayit correctly notes that the true origin of the override in Israeli constitutional law is in Basic Law: Freedom of Occupation. The Ne'eman committee first proposed it as a general principle.) The committee was actually dominated by Aharon Barak, through his shik yingel, Yitzhak Zamir. Their scheme was to create the illusion of balance by claiming that they were simply adopting an existing model, while actually gutting it of all substance. Their "notwithstanding" proposal (paragraph 11) differed from the Canadian model in the following ways:

1. The Canadian override can be invoked also prior to a court ruling; in the Ne'eman (Barak) proposal, it could only be invoked after such a ruling.

2. The Canadian override requires a simple plurality vote (i.e., it can be invoked by a 2-1 vote), whereas the Ne'eman (Barak) model requires 70 votes. As a practical matter, this could never happen.

3. The Canadian override remains in effect for five years and can then be renewed and such renewal can be invoked an indefinite number of times. In the Ne'eman (Barak) model, the override dies forever after five years.

4. The Ne'eman (Barak) override clause is temporary and the whole clause disappears ten years from passage of the proposed bill.

As you can see, the Ne'eman (Barak) bill is an absurd joke. Friedmann is taking the Canadian model a bit more seriously. On the four points above, Friedmann's proposal is as follows:

1. Friedmann sides with Barak that the override is post-hoc and not prophylactic. That's reasonable.

2. Friedmann requires 61 and a differential of at least five votes between pro and con votes on the override. The requirement for 61 is reasonable; the other requirement is dumb and reeks of compromise.

3. In Friedmann's proposal, the override is in effect for five years, but when it terminates, the law remains in effect until the Court invalidates it again. This is actually a bit stronger than the Canadian model in which the law is automatically invalidated after five years unless the override is renewed.

4. Friedmann's proposed law doesn't self-destruct.

In sum, in most aspects Friedmann's override proposal is weaker than the Canadian version. When you add to this the fact that Israel's High Court is generally contemptuous of limitations on justiciability and is largely self-perpetuating, the juristocracy has very little to complain about. But, as My Obiter Dicta points out, they and their peanut gallery are in high dudgeon.

Unfortunately, they can calm down. Olmert is just wielding a stick. The moment the carrot looks more useful, the stick will vanish in a puff of smoke.


Blogger Ben Bayit said...

The override provision is already part of Israeli Constitutional Law and hass been for over 15 years. Section 8 of Basic Law: Freedom of Occupation has such a provision which has already been applied to Knesset legislation.

The dispute you refer to revolves around the Constitution that the Knesset discusses but will never pass.

10:04 PM  
Blogger Ben said...

The dispute revolves around Basic Law: Human Dignity (and possibly other basic laws). The same dispute is taking place in parallel with regard to the constitution that might never pass.

10:37 PM  
Blogger Saul Lieberman said...

Does the comparative law analysis ever make its way into the media? I heard an interview with Friedmann the other day, I don't think he invoked it.
What is Neeman's view today?

12:07 AM  
Blogger Ben Bayit said...

Frankly, it never made sense that the override was only in one Basic Law and not in the other. I believe that there are even some scholars who are of the view that the override can be applied to BL:HD as it is currently written owing to the fact that BL:FO already has it, and that this is simply a lacuna in the BL. This theory has never been tested and is probably likely never to be tested.

10:47 PM  
Anonymous iiycvevi said...

"I believe that there are even some scholars who are of the view that "

Since when is the Bagatz concerned with scholarship?

1:46 AM  

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