At Loggerheads
I have a vague recollection of reading somewhere about Blackstone’s ratio, namely,
that:
“It
is better that ten guilty persons escape than that one innocent suffer.”
A legal concept
expressed by the English jurist William Blackstone in his seminal
work’ Commentaries
on the Laws of England, published in the 1760s.’
The idea subsequently became a staple of legal
thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate.
There is also a long pre-history of similar sentiments going back centuries in
a variety of legal traditions. The message that government and the courts must
err on the side of bringing in verdicts of innocence has remained
constant.
Perhaps our prime
minister and his legal advisers could cite Blackstone’s ratio? I hasten to add
that I know little or nothing about criminal law.
However, citing Blackstone could be viewed as
an admittance of guilt.
On second thoughts,
I’ll stick to quoting better informed sources.
Under the heading - “Why is reasonableness making us so unreasonable?” the author/s of an
article in “Globes” opened up a
Pandora’s Box of conflicting legal opinions. Globes is a Hebrew-language financial newspaper that deals with economic issues and news from the
Israeli and international business worlds.
Understandably, friends and acquaintances in the legal profession are
relishing the debate, I find it mind-boggling. The watershed in this issue is seen by legal
experts as being the "Golden Pages" ruling in 1980. This ruling,
written by Supreme Court Justice Aharon Barak, very much widened the
considerations of reasonableness that the court could take into account. For
example, Barak ruled for the first time that an administrative authority had
freedom of action only within what he described as "the range of
reasonableness", and that any substantial or extreme departure from this
range could lead to the authority’s decision being set aside.
Professor
Yoav Dotan of the Faculty of Law at the Hebrew University of Jerusalem, who is
known as a fierce critic of the way in which the reasonableness standard has
become accepted in Israel, made headlines recently when he told the Knesset Constitution,
Law and Justice Committee that he actually opposed the legislation that the
government is now promoting, saying that "before the administrative
revolution that Aharon Barak introduced, the courts intervened in
administrative decisions only when it was clear that the decision was made
without legal authority, on the assumption that the legislature did not intend
to empower the administrative authority to make patently unreasonable
decisions." He says that, in its current format, "the term
‘reasonableness’ as it exists here is much broader than it is anywhere
else."
On the other
hand, Professor Dotan himself admits that such comparisons
are always problematic, since in other Western countries "there are checks
and balances that don’t exist here, such as the rules of the European Union, or
the European Convention on Human Rights."
“Beware the
strongman leader who fears jail.” Warned British
journalist/author Jonathan Freedland in an op-ed he wrote for The Guardian.
“Donald Trump is running for president in part
because he sees a return to the White House as a literal get-out-of-jail-free
card: reinstalled in the Oval Office, he would be able to pardon himself for
the mounting pile of serious federal crimes for which he is indicted.
His legal strategy is his political strategy.
But the
exemplar of the phenomenon is the man who was Trumpian before Trump: the prime
minister of Israel, Benjamin Netanyahu. It is Netanyahu – and the war he
is currently waging against his own country – whom all those who care about the
wider future of democracy should be watching. For Israel has become the test
case in the global fight against ultranationalist populism.
On Monday, Netanyahu’s coalition passed a
new law curbing the powers of Israel’s judiciary. No longer will the
supreme court be able to block the government from taking action the judges
deem “extremely unreasonable”. That matters, because in Israel the courts are
pretty well the only restraint on government power: there is no second chamber,
no established constitution. And Monday’s vote was merely the first in a series
of moves designed to gut the power of the judiciary: opponents, who have
been out on the streets in huge numbers since January, call it a “judicial
coup”.
There are multiple motives in play here, but
the crucial one is that Netanyahu
is several steps down the road that Trump dreads: he is on trial for
corruption. He is due to testify in the coming months, which is sufficiently
perilous a prospect that he’s willing to abuse the power of his office to avoid
it. Thanks to the law passed this week, that could mean an attempt either to
sack the attorney general or strip her of authority over prosecutions, clearing
the way for a new, more sympathetic official who might – purely coincidentally,
you understand – decide to review existing cases, before concluding that all
charges against Netanyahu should be dropped and the trial halted.
AG Gali Baharav Miara at loggerheads with P.M Benjamin Netanyahu
David Remnick editor of the New Yorker claims, “Netanyahu is willing to erode the liberty of
his people to insure his own”.
Do ‘liberty’ and the ‘rule of law’ sound a little abstract? Then take a look at
Netanyahu’s coalition partners, who
gave him the votes he needed on Monday. They consist of ultra-orthodox
fundamentalists, nationalist extremists and overt racists, who together make up
the most rightwing government in Israel’s history
Netanyahu may
be driven chiefly by the desire to save his skin, but these people are happy to
help because an eviscerated judiciary allows them to realise their own dreams.
For the ultra-orthodox, the big prize is exemption from conscription into
military service, but for Ben-Gvir and his fellow extremist nationalist,
finance minister Bezalel Smotrich, who is also in charge of settlement
construction, the goal is ever tighter control, if not annexation, of the
occupied West Bank. En route, there are countless steps the far right is
itching to take – all of which would make life, already harsh for Palestinians,
unbearable.
Of course, the ambition does not end there. The
government barely hides its intention to reshape the Israeli political
landscape, ensuring the playing field is tilted permanently in its favour. That
is why Netanyahu and his ministers are targeting not only the courts but the media, another institution with an
irritating habit of holding power to account. They are keen to funnel public
money into the Fox News-style Channel 14, while putting the other,
straighter networks under tough new rules, including crippling fines for
coverage that fails to meet the government definition of ‘balance’. The result would be an environment in which
the right might never lose another election.
All of this
matters to Israelis, to Palestinians and to those Jews around the world who
feel themselves bound up with the country and its fate.
Most crucially of all, they have the support of
an estimated 15,000 military reservists, including those from elite
units, fighter pilots among them, who have either refused, or
threatened to refuse, to serve.
In March, this combined pressure succeeded in
persuading Netanyahu that he should not stage his judicial coup in a single
wave of shock and awe, but should instead salami-slice it, bit by bit. This
week, he forced the first slice down the throat of a reluctant Israeli public.
In other words, despite massive economic and civil disruption and a mutiny that
military officials warn has seriously degraded Israel’s ability to defend
itself, Netanyahu went ahead anyway. The tactics had changed, but his pursuit
of the goal had not wavered.
That prompts a troubling question for all those
engaged in the fight against nationalist populism, wherever they are. If all the strength and numbers
Israel’s pro-democracy movement has mustered are not enough, what exactly will
it take? Can it really be that a nation is powerless to stop a leader bent on
destroying his country to save himself? That thought is almost too bleak to
contemplate. Which is why everyone who cares about democracy, including those
who are distant from Israel, should desperately want those protesters to
succeed. We need them to win.”
If for some reason (usually a hyperactive
spam blocker) you don’t receive my post as usual, you are welcome to access my
blog site:
Beni 8th of August, 2023.
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