Judicial Review and Election’s Dirty Tricks in an Age of Hyper-Activism

Judicial Review and Election’s Dirty Tricks in an Age of Hyper-Activism

Yoav Dotan
March 16, 2015

     One of the recent squabbles in Israeli politics was triggered by the Prime Minister’s decision to remove two of the judges on the panel that had been appointed to elect the winner of the prestigious Israel Prize for literature. Netanyahu openly conceded on his Facebook page that the reason for his decision was political, i.e., that the politics of those two judges (both distinguished professors of literature at top universities) were too leftist and therefore not sufficiently “Zionist” for his taste. Not surprisingly, the decision stirred public outcry. It brought about the resignation all the judges on the panel as well as the resignation of several other judges appointed to other panels of the prize. The opposition accused Netanyahu of injecting political considerations into a process that should have been, presumably, meritocratic. See Peter Beaumont, “Israel Prize Judges Resign After Binyamin Netanyahu’s ‘Political’ Intervention,” The Guardian (Feb. 12, 2015).

     Shortly after Netanyahu made the decision the Attorney General (“AG”), Yehuda Weinstein, contacted him and told him that the Prime Minister (“PM”) was not authorized to make such decisions due to the proximity of the elections.  See Or Kashti, Barak Ravid, & Jonathan Lis, “After AG’s Request, Netanyahu Retracts Disqualification of Israel Prize Judges,” HaAretz (Feb. 13, 2015).  Such “advice” from the AG is legally binding because under Israeli law, Netanyahu’s decision was fully justiciable and subject to immediate potential challenge before the High Court of Justice (HCJ). In such proceedings, the PM is represented by the AG, who is unlikely to object to judicial intervention should the PM act against his legal advice. See Yoav Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel 57-59 (Cambridge 2014).

     Not surprisingly, Netanyahu was quick to back off. He cordially announced that, in light of the AG’s position, he wished to withdraw his intervention in the proceedings of the Israel Prize panel and approve its original composition. See Gili Itzkovitz and Revital Hobel, “Israel Prize for Literature Studies will not be Awarded Due to Netanyahu’s Interference,” HaAretz (March 9, 2015).

     Given the tenuous legality of his original decision, and his speedy backtracking, one may wonder what brought Netanyahu to make this problematic move at all. Presumably, he should have foreseen that the decision would not survive judicial review. If so, why did he choose to involve himself in this delicate subject and risk the need to concede failure? A cynical observer would suggest that this was exactly the PM’s plan. He knew that the decision would immediately reviewed by the HCJ. Nevertheless, he made the move knowing that the judicial system would not approve because there is nothing more popular among right-wing voters, particularly in the period leading up to elections, than a hit on the “leftist intellectual elites.” The fact that the move was thwarted by the judicial apparatus (itself part of the “leftist elite” in the eyes of those voters) would not count against the PM since he did the best that he could to overcome his meddling opponents.

            For those who wonder whether the above analysis is not too cynical, I refer to another event from a previous election period.   In 1999 the then-PM, who was none other than Benjamin Netanyahu himself, decided, one week before election day, to use his authority under the Emergency Defense Regulations and issue a closure order against the Palestinian Authority’s headquarters at the Orient House in East Jerusalem. Since the Orient House had been a center for the diplomatic activity of the PA at that period, the move – if carried out – was likely to cause an international crisis and probably also violent riots all over the city. The closure order, however, was not enforced, because it was overturned by the HCJ on the very same day it was issued. The Court issued an interim injunction for one week (i.e., until after the elections) and prevented the harsh repercussions that were likely to follow. Hilman v. Minister for Internal Security, HCJ 3123/99-A (May 11, 1999, unpublished).   And the PM? He earned the applause of right-wing circles without having to pay the full price of the move (if implemented).  See Dotan, supra, at 41-43.

     The above two incidents exemplify the role of judicial review in Israel today. Since almost every governmental decision is potentially subject to judicial review, the political system functions under the assumption that judicial review will occur. As a result, politicians use the prospects for judicial review strategically, as a vehicle for political maneuvering. In the age of judicial hyper-activism, judicial review becomes just another tool in the political game.

     Incidentally, Netanyahu’s trick didn’t work in 1999. He lost the elections to Labor leader, Ehud Barak. We shall have to see whether this time leveraging judicial review did the trick.

Yoav Dotan is the Edwin A. Goodman Professor of Law and former Dean of the Faculty of Law at The Hebrew University of Jerusalem and a member of the Academic Advisory Board of the Israeli Supreme Court Project.