Israel’s Top Court Set To Hear Three Key Cases Against the Government in a Legal System Gone Topsy-Turvy
‘Reasonability’ standard for government actions is one of the issues — along with the question of whether a prime minister may be declared ‘incapacitated.’
In the next few weeks, Israel’s Supreme Court is scheduled to hear three extraordinarily consequential petitions against the Government. Two of the cases involve challenges to amendments to Israel’s quasi-constitutional Basic Laws.
One deals with the circumstances under which the Prime Minister may be declared to be “incapacitated” (akin to the 25th Amendment to the American Constitution). Another addresses the “reasonability” standard of review of government actions.
The court will also consider a challenge to the Justice Minister’s refusal to convene the Judicial Selection Committee, which he chairs.
One would think that the government’s chief legal counsel would be the one defending the legality of the government’s actions. One of the basic principles of due process and legal ethics, after all, is the requirement that each side to a legal dispute can have an attorney who zealously represents his client and makes the best legal arguments available on behalf of his client.
In the topsy-turvy Israeli legal system, the opposite is happening. In Israel, the legal advisor to the government (often referred to in English as “Attorney General”), Gali Baharav-Miara, does not believe that her job is representing her client, but rather her own notions of what is good policy and best legal architecture.
Although Ms. Baharav-Miara is ostensibly the government’s attorney, she was not appointed to her position by the current government. Nor, because of the positions she has taken, does she enjoy the government’s confidence. Most surprisingly, she cannot even be fired by her own client. There is no legal prohibition on the government replacing its legal advisor. Yet she and the courts have taken a position that to do so would be “unreasonable.”
The government is currently attempting to rein in this rootless, amorphous, and infinitely malleable “reasonability” standard and instead require the courts to look only to formal statutes and rules in making their decisions.
Whether the government’s actions and enacted statutes are a good idea is largely beside the point. What matters is that the wisdom is at least debatable, and from a legal perspective, they are amendments to Basic Laws, which the Court itself has declared to be Israel’s highest laws.
Any attorney should find no difficulty coming up with plausible, non-frivolous legal arguments in support of these enactments. Even more so for the Justice Minister’s decision not to convene the Judicial Selection Committee because there is no actual legal requirement that he do so, just a traditional practice of sorts.
Incredibly, in all three cases, Ms. Baharav-Miara filed her briefs on the side of those challenging the government’s and Knesset’s decisions, rather than with her client — the government of Israel. Ms. Baharav-Miara did not merely refuse to defend the government’s and legislature’s actions in court. Instead, she came out against the government and the Knesset on all three challenges.
That is not all. In all of her submissions to the court, Ms. Baharav-Miara argued that her powers cannot be in any way reduced, but her client’s powers can. Not only has she abrogated the most basic duty of an attorney to client — that of being a zealous advocate for the client’s legal position — but she elevated her own interests above those of her client.
One would think that if an attorney felt so strongly that the client’s legal position is not tenable, then she would resign from the case. Yet Ms. Baharav-Miara has no intentions of resigning. Instead, she has, and intends to continue to use the powers of her office to undermine the legal arguments of her own client.
One of the worst aspects of the Soviet “justice system” was when government-appointed defense attorneys turned on their own clients proclaiming that the attorney’s own “communist consciousness” would not permit him to defend “counterrevolutionaries.”
Instead, these attorneys often turned around and joined the prosecutors to demand severe punishment for their own clients. That the same approach would live in the Israeli justice system is truly the “end of democracy.”