The power breakers

Neville Sarony July 28, 2023 08:33

Essentially, all politicians seek power, whether to use it for the good of their electorate or to advance their personal agenda.

A political system that lacks the means to restrain or prevent the abuse of political power is liable to become autocratic to the point of dictatorship.

But politicians covet power to such an extent that they harbour animus towards those who seek to curb or restrict their ability to exercise it.

This is the aetiology of political hostility to judicial oversight.

Jurisdictions with a written constitution enjoy a set of principles, most often described as ‘rights’ against which the acts of executives and administrations can be measured for their validity.

But legal systems that lack a written constitution necessarily depend on their judiciary to determine whether or not the acts and omissions of their respective governments measure up to objective standards of fairness.

The process of seeking definitive determination of the validity of such conduct is by way of Judicial Review, commonly abbreviated to ‘JR’.

Contrary to a myth promulgated by politicians who loathe having their decisions questioned, the grounds on which a decision can be invalidated by way of JR are limited.

Aside from where the decision-maker is the sole judge of the propriety of the act and has a vested interest in the outcome, judges consider the reasonableness of the decision.

Where something plainly material to the outcome has been ignored or something manifestly immaterial has been taken into consideration, the decision is self-evidently unreasonable and flawed.

But the highest hurdle faced by the applicant for JR is to establish simply that the decision is ‘unreasonable’.

The test of unreasonableness is whether a reasonable person acting reasonably could have reached such a decision?

This has to be put in the context of the test being applied by judges who are called upon to reach informed and balanced decisions on a regular basis.

The concept of reasonableness is deeply embedded in the Common Law system of justice.

The law of Tort, for example, imposes a duty of care that is tempered by what is reasonable, hence the most common test is whether something is reasonably practicable.

Viewed rationally, most civilised people would acknowledge that, in terms of human behaviour, reasonableness is a fair yardstick against which conduct should be measured by an independent judiciary.

It is against this background that one has to consider the current Israeli government’s proposed steps to curb the power of their country’s judiciary to exercise a supervisory role over that same government’s abuse of power.

Now factor in that Israel has never had a more imbalanced government than its current iteration and the scope for abuse of power becomes frightening.

When 100,000 people out of a population of 7 million embark on a months’ long protest, one might have imagined that an administration even modestly attuned to the wishes of its people would have second thoughts.

Bear in mind that it is the declared intention of Bezalel Smotrich, the Finance Minister, to occupy all the territory on which the Palestinians live and even to cleanse the state of Israel of its Arab-Israeli citizens.

Together with Itamar Ben-Gvir, the Minister for Security, a man convicted of racial incitement and support for a terrorist organisation, these men with a complicit Netanyahu, seem hell-bent on destroying the ideal of the rule of law in a secular democracy.

In Henry VI Shakespeare posited an anarchic ruler, allowing one character to suggest “first thing we do, let’s kill all the lawyers.”

Neutering the judges by removing their constitutional supervisory role, whether it be a Netanyahu or Hungary’s Victor Orban or stuffing the Supreme Court with their poodles as Trump has, deprives populations of the means to counteract the abuse of power.

A significant proportion of Israeli citizens are bearing witness to the words of John Philpot Curran, the great 18th century champion of Irish liberties who said “The condition upon which God hath given liberty to man is eternal vigilance.”

It has become increasingly important to learn to distinguish between an overweening government and a country’s patriotic citizenry.

These are circumstances in which an independent judiciary may be all that stands between the individual and despotism.

Without constitutional guarantees or a supervisory role for the judiciary, what is there to prevent the sort of ethnic cleansing that provided the catalyst for the establishment of a Jewish homeland?

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Neville Sarony

King's Counsel