Ironically, in making the ruling on
New Year’s Day of 2024 striking down Prime Minister Netanyahu’s amendment to the
country’s basic law that would have removed the judiciary’s authority of judicial
review of laws based on their reasonableness, Israel’s Supreme Court too unreasonably
exploited a conflict of interest. Basic Law, which is
essentially constitutional law, includes the basic architecture of a
government, such as how the executive, legislative, and judicial functions are
related. Self-interest being a salient feature of human nature, we can assume
that the governmental functionaries in each of those functions naturally seek
to expand their respective jurisdictions relative to those of the other two. I
contend that to give one or two of those areas the last word in altering the
division of authority involves a conflict of interest. This applies to a
constitutional court. Therefore, even though democracy is served by a judicial
decision striking down an attempt by the executive and/or legislature to eviscerate the authority of the judiciary to act as a check, giving the latter the last word is fraught with
entanglements.
By eight to seven justices, the
court ruled “that a government amendment to the so-called reasonableness law
should not stand. The bill had stripped the Supreme Court of the power to
declare government decisions unreasonable.”[1]
That very officials who make government decisions in the Knesset passed the
basic law can be seen as problematic. It was essentially a power-grab by the
executive/legislative domains at the expense of the judiciary. Although the
court “rejected the amendment because it would deal a ‘severe and unprecedented
blow to the core characteristics of the State of Israel as a democratic state,’”[2]
the naked power-grab could itself be viewed as unreasonable, even taking for
granted the element of power-aggrandizing in governing. The court could also
have ruled on the basis of there being an institutional and personal conflict
of interest, but the court itself could be charged with the same offense in
deciding the matter. It is just this conflict of interest that flew below the
media’s radar (and got me to writing).
Even though the ruling did not expand the court’s authority, the decision arrested a decrease, and was thus in the personal and institutional interest of the judiciary in terms of power. Just as the majority in the Knesset had acted in its interests, the majority on the court did as well. The matter was thus a power struggle, and thus giving one side the final, definitive say is unfair. The ruling cites the importance of judicial review of laws passed by the Knesset as being in the broader interest of democracy in Israel, but the relatively narrow personal and institutional interests of the justices and their court could be expected to be exploited, and this may be the real reason for the ruling. To be sure, an independent judiciary is indispensable for the executive and legislative functionaries to be held accountable. Although they could argue that the voters could perform that function at election-time, elections do not include sending corrupt officials to jail, and the sitting Prime Minister was charged with corruption judicially at the time that he was steering the bill to passage (which counts as a personal conflict of interest). Even if the court’s democracy argument is solid, the personal and institutional conflicts of interest in the justices resisting a restriction on the purview of their judicial authority are inherently unethical and thus should be obviated if possible.
The inherency is explained by just how inherent the
self-interest to exploit a conflict of interest, whether personal or
institutional, is in human nature.[3] Without doubt a conflict of interest that
actually has been exploited is unethical because a private or relatively narrow
benefit is put before a public or relatively broad benefit or duty.
In judicial language, strict scrutiny should therefore be applied to unilateral decisions by legislative, executive, or judicial functionaries or “branches,” of government that self-aggrandize authority at the expense of one or two of the other “branches.” I recommend that such conflicts of interest be obviated by putting such matters to the electorate. So this is not merely a rubber-stamp of the majority parties, a 2/3 majority should be required to change Basic Law. Otherwise, we are left with the unsavory alternative of having the contending governmental interests play out their internecine power-struggles on the constitutional stage with one such interest having to have the final word, which is unfair to the other interests. In a democracy, after all, popular sovereignty is more fundamental than governmental sovereignty.
2. Ibid.
