When people defend judges

Some 200,000 vigilant protesters are marching around Israel’s parliament (Knesset) and several cities opposing 73-year-old Prime Minister Benjamin Netanyahu government’s new law to control the country’s judges. It’s a worthy fight to defend the judiciary.

As a politician facing charges of “fraud, bribery and breach of trust,” Netanyahu, two weeks ago, boldly led a 60-0 majority, after the opposition walkout, to remove a 1984 law which gave the Supreme Court discretion to block or evaluate legislative decisions if they are found to be “unreasonable” in a democracy. That was his first anti-judiciary salvo which should attract our interest since our own constitution contains a similar clause for “reasonableness” in law-making.

Our constitution (Section 13) allows a judge to decide whether a law is “reasonably justified in a society that has a proper respect for the rights and freedoms of the individual.” This restraining provision, subjective as it appears, puts a judicial leash on, for example, the “tyranny of the majority.”

This “reasonableness” provision, present in several Commonwealth countries, implicitly responds to the well-documented over-reach of political power ­– the politician’s insatiable quest for it and the subversive routes often used to keep it. That is Netanyahu.

However, while fighting for the independence of the judiciary is noble, the judiciary itself must protect its integrity and the rule of law. It was therefore a bit inspiring when our crusading High Court judge, Frank Seepersad, said: “Orders of the court ought not to be dismissed or disregarded. The rule of law is dependent on parties abiding by the orders of the court.” (Guardian, May 6, 2023) What if they don’t? He was dealing with a matter in which the court order was apparently ignored. Too often, it seems, especially by government agencies. Contempt of court is an important judicial tool to maintain the rule of law. Judges must not appear reluctant to enforce their orders. The judiciary loses respect that way. And victims continue to suffer and wonder where else to turn.

In fact, there are provisions in the Legal Profession Act (No 21 of 1986) whereby lawyers are obliged to respect and protect the integrity of the judiciary and not as the Law Association advised, to have it ”scandalised.” Lawyers are obliged “to promote, maintain and support the administration of justice and the rule of law.” (Section (5) (f) No lawyer should encourage or support any client to show “disrespect for the judiciary.” (Code of Ethics, Section 10) The fight to preserve judicial integrity and rule of law therefore must come from within as well as outside.

Netanyahu – heading a quickened coalition of extremist parties and religious groups – also plans to give more power to the legislature (a veto) in the appointment of judges. He claims that judges are “unelected, insular and elitist.” His anti-judge sentiments also stem from the judiciary once blocking his appointment of a coalition partner, Aryeh Deri, as minister of finance while he was convicted of fraud, bribery and money laundering. Political control over the judiciary, and a judiciary seemingly unwilling to exercise its authority are dangerous for a healthy democracy.

As CNN reported, the Bar Association, the Medical Association and several other professional groups and intellectuals are protesting against Netanyahu – some on hunger strike. The US has advised him to withdraw. Netanyahu refuses. And all this as he returned to the Knesset soon after leaving hospital with a pace-maker. He got his 60-0 majority in the 120-member legislature because the opposition walked out, with its leader, Yair Lapid, complaining “This is not a victory for the coalition. This is the destruction of Israeli democracy.” The widespread suspicion is that Netanyahu is reducing the powers of judges in favour of legislative intervention for his personal benefit – considering the charges against him. He has denied the charges.

His Machiavellian bargaining includes giving his extremist partners legislative concessions for expanding Jewish settlements on the controversial West Bank, pushing Jewish superiority, limiting the rights of LGBTQ+ persons and Palestinians. The protesting groups and the opposition plan to submit petitions asking the Supreme Court to block Netanyahu’s anti-judiciary actions. If the judiciary accepts these petitions, the country is likely to face an unprecedented, protracted constitutional collision. The fighters for judicial independence are not likely to surrender easily.