A well-known wing statement in the various law faculties says that “Hard cases make bad law”. The demand of the statement is that when in reality a particularly unusual event occurs, and the existing law is not suitable to give a good answer, the reaction to the event may cause The system will produce a precedent or law that will be harmful in other cases in the future.
When a particularly unusual event occurs in reality, and the existing law is not appropriate to address it well, the response to the event may cause the system to produce a precedent or law that will be harmful in other cases in the future.
I can not think of a more difficult and complex case than the legal issue before the High Court, which will have to be discussed next week.: Can a prime minister against whom three indictments have been filed form a government, assuming he receives the mandate to do so in democratic elections?
Everything is known and authority is given
Netanyahu’s supporters say that if the court rules that Netanyahu is not allowed to stand trial, then it is as if the court determines the election results and means “the elimination of democracy,” in the words of Erez Tadmor, the “commentator” of the sixth edition of News 13.
The truth is that if the court refrains from making the decision, just because it takes into account the will of the people, and not out of net legal considerations, it means that the court is elevated in its role, and precisely this heralds a serious violation of the judiciary’s independence.
The truth is that if the court refrains from making the decision, just because it takes into account the will of the people, and not from net legal considerations, it means that the court is elevated in its position, and precisely this heralds a serious violation of the independence of the judiciary
But what lies beneath the surface of this whole debate, and no one says it explicitly (except me, now!), Is a nuclear-legal debate: What is the role of the court, and what is the limit of interpretation of the law. what does it mean? If we say the language of the Basic Law: the government would say something explicit and clear, such as “in case an indictment is filed against a minister or prime minister – he must resign immediately”, it would not be difficult, at least for most of the public, to accept the situation where the court orders the departure of a minister Or the prime minister in office.
The problem, however, is that the language of the law, naturally to the Anglo-American legal system that exists in Israel, is worded more generally, which requires constant interpretation. Still, ostensibly the court does not create a law, but only interprets the existing law, and tries to understand what the legislature really meant. However, this interpretation is often seen as an intervention of the law in the intention of the legislature, and not as an honest interpretation.
Binding precedent?
Many in the media today return to what is known as the “Pinchasi-Deri rule.” The reference to the High Court was given in the 1990s, when indictments were filed against Aryeh Deri of the Shas (and Deputy Minister Rafael Pinhasi, also of the Shas) while they were members of the Rabin government at the time. The Basic Law of the Government then (as it is today) stipulates that as soon as a government minister (or deputy) is convicted of an offense in court, and the court determines that there is disgrace in this offense, the term of office of the Minister shall cease. That is, on the face of it, if the law requires the termination of the minister’s term of office only from the moment of conviction, then there is no obligation to terminate the term of office until the conviction.
However, the court ordered Rabin to fire Minister Deri from the government anyway. why? Because the law gives the prime minister authority to terminate a minister’s term. If the law confers such authority and possibility on the prime minister, it is unlikely that once an indictment is filed against a minister, the prime minister will not immediately use that power and dismiss the minister. The decision not to fire the minister goes beyond the bounds of reasonableness, and therefore the court saw fit to oblige Rabin to fire Pinchasi and Deri.
If the law confers such authority and possibility on the Prime Minister, it is unlikely that in filing an indictment against a minister, the Prime Minister will not immediately use that authority and dismiss him. The decision not to fire exceeds the bounds of reasonableness, and therefore the court considered it appropriate to oblige Rabin to fire Pinchasi and Deri
Bibi’s supporters will argue that even if we accept that the Pinchasi-Deri rule still applies (not sure), and even if we assume that it should not be revoked, Yet the rationale that applies to a minister does not apply to a prime minister: dismissing a prime minister, unlike a minister, actually means ending the term of office of the government. That is, there is a violation of the stability of the government in the country. Also, a minister can be fired by a prime minister who is his boss, but a prime minister has no boss. The court is a separate authority from the government.
The happy days of Rabin
Bibi’s opponents will argue that if it is unlikely that a minister will serve an indictment, then it is doubly unlikely that a prime minister will serve an indictment. This claim in my eyes is true, but it rests on the fact that Pinchasi Deri went right. I believe that the court’s interpretation of Pinchasi-Deri was incorrect, and was what is called ‘too activist’.
Opponents of Bibi would argue that if it is unlikely that a minister will serve an indictment, then it is twice as likely that a prime minister will serve an indictment. The claim is that Pinchasi Deri’s rule is correct.
The times back then were simply different: at the time, the public respected the justice system and law enforcement systems. When an indictment was filed, it was clear that the system was operating for material reasons, and that the court was not operating in the service of the “junta.” Therefore, it would seem clear that when an indictment is filed against a minister, that minister will continue to serve. The court said as if it was clear that the legislature did not intend for a minister to serve an indictment, so “we will help a little.”
However, my opinion on the interpretation of the Basic Law of Government is not important. Theorems are not math: there are several correct answers to the same question. However, the difference between the period in which Pinchasi-Deri was given and the coming week is that the trust that existed then between the public and the court no longer exists.
After all, on the face of it, the court is obligated on its face to rule in accordance with the precedents that bind it. Pinchasi’s rule is indeed still binding, and it does not make sense to deviate from it when it comes to a prime minister, because if a minister is to be removed from office, then it is clear that a prime minister must also be removed from office.
What is even more clear to me, however, is that the court will not have the courage to make a decision that means ending the prime minister’s tenure in the current political climate. No wonder Minister Ohana said in an interview yesterday that “if the High Court decides on the prime minister and his ability to form a government, we will respect the ruling.” He understands that this statement will not stand the test.
The court will not have the courage to make a decision that means ending the term of the prime minister, in the current political climate. It is no wonder that Minister Ohana said that “if the High Court decides on the matter of the Prime Minister and his ability to form a government, we will respect the ruling.” He understands that this statement will not stand the test
This situation, in which an indictment is filed against an incumbent prime minister, when there is a political tangle on the one hand, and a lack of trust between the people and the government and the judiciary on the other, is exactly From these complicated situations, no matter how they end up, will be worse than before. Hard cases create bad laws.