In his attack against the retired president of the Supreme Court, Aharon Barak, Justice Minister Yariv Levin accused him of unlawfully grabbing authority to declare a statute unconstitutional. Is it so indeed?

The Basic Law: Human Dignity and Liberty, which stands at the center of the controversy, declares as follows:

“The basic human rights in Israel are based on the recognition of the value of the human being, the sanctity of his life and his being a free person, and they shall be upheld in the spirit of the principles included in the Declaration of the Establishment of the State of Israel.”

Then the statute goes on and provides, “One is not to violate the rights accorded by this Basic Law save by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose and to an extent that does not exceed what is required.”

To leave no doubt the statute states in explicit words, “Each and every government authority – namely. The Knesset included – is obliged to respect the rights in accordance with this Basic Law.”

The Basic Law

The judiciary, whose role is to state the law, must therefore declare any statute that contradicts the Basic Law invalid.

The Basic Law: The Judiciary provides moreover, “Whoever is vested with the power of adjudication shall not be subject to any authority regarding matters of adjudication, except for that of the law.”

Levin accused, moreover, Barak of inventing the reasonableness test thus abrogating lawful ministers’ decisions.

Vis-a-vis Barak, Levin places two legal giants, presidents Agranat and Landau, who wouldn’t dare do so. No doubt, Agranat and Landau were two of the greatest judges that served on the Supreme Court, but wouldn’t they?

I have no doubt that during his law studies at the Hebrew University, Levin came across two of the leading precedents. In the first case, the interior minister ordered the suspension of the publication of the Communist Party newspapers Kol Ha’am and Al-Ittihad. He did so following op-eds under the title “The people will not permit speculation in the blood of its sons.” The op-eds echoed a publication in Haaretz that Israel would place 200,000 soldiers at the side of the United States in its fight against North Korea.

THE MINISTER’S order was made under the provision of section 19(2) (a) of the Press Ordinance, authorizing him to suspend the publication of a newspaper if any matter appearing in a newspaper, in the opinion of the Minister of Interiors, is likely to endanger the public peace.

Agranat had no doubt that the minister acted under his lawful authority. He nevertheless overruled his decision. He did so in two stages. First, Agranat declared that although the ordinance empowers the minister to close down a newspaper if its publication is likely to endanger the public peace, this test is perhaps suitable to a political system employed in a state based on an autocratic or totalitarian regime but it obstructs or at least renders inefficient, the use of that process which constitutes the very essence of any democratic regime, namely, the process of investigating the truth.

To endanger the public peace is unacceptable. Since Israel is a democracy, a publication may only be suspended if the danger to public peace is probable.

At the second stage, Agranat had to overcome the fact that in the minister’s opinion, the publication did endanger public peace. Here, Agranat had an even bigger problem since in his own words “the court will not interfere with the discretion of a minister.” However, declared Agranat, in this case, the minister erred in the exercise of his discretion and therefore his order must be set aside. Well, what is this if not the reasonableness test?

The second case is even clearer. The Knesset passed a Law providing public funding for election campaigns solely to party factions that were represented in the outgoing Knesset. An extended panel of the Supreme Court per Justice Landau declared the Law invalid since by denying funding from new lists of party candidates, it violated the equality principle stated in section 4 of the Basic Law: The Knesset.

In addition, Landau did away with the requirement that a petitioner must show personal interest in order to have a locus standi in court. This is so since Bergman, a Tel-Aviv lawyer and banker, was not damaged by the Law, as he did not run for the Knesset, nor supported a new list. He might be regarded, therefore, as the first public petitioner. Namely, this institute, too, was not invented by Justice Barak.

The writer is dean and head of the program at the School of Law of the Peres Academic Center, and vice honorary president of the International Association for the Defense of Religious Liberty.