Government defiance of High Court paves way for future disregard of the law

The government on Sunday stepped over a line that many cabinet ministers have threatened, and even vowed, to cross for months if not years: openly declaring that it does not accept a ruling of the High Court of Justice.

In a dramatic joint statement, Communications Minister Shlomo Karhi and Justice Minister Yariv Levin announced that the government would not accept the results of a High Court ruling in June which undercut Karhi’s efforts to assert control over the Council of the Second Authority, an independent broadcast media regulation body.

In the actual text of the cabinet declaration, the government stated that it would use all tools at its disposal to undo the court’s decision, and would not accept as valid any decisions made by the Second Authority under the terms of the High Court ruling.

The government’s decision is certainly a watershed moment. No government has ever openly declared that it will not respect a High Court decision, although the current government has frequently approached that line, and even crossed it less blatantly on several occasions.

Despite the uproar that the unprecedented declaration created, the actual legal impact of the announcement on the Second Authority council will likely not be especially significant.

But the declaration may still exert pressure on the council not to defy the government.

And critically, the very fact that the government stated publicly that it does not see a High Court ruling as valid and binding is a dangerous precedent which lays the ground for disobeying other court decisions.

The specific case

Although the government makes appointments to the Second Authority council, it has no authority over the panel’s decisions since it is an independent, statutory body.

The court’s decision in June did not actually order the government to do anything, but rather gave instructions to the Second Authority as to how to act.

Dr. Tehilla Shwartz Altshuler, a senior fellow at the Israel Democracy Institute, said that there is therefore nothing that the government can actually do to stop the Second Authority council from convening and making decisions, including on approval of a buyout of Channel 13 by critics of the government, the proximate cause of the entire fight over the council.

Should the council approve the sale of Channel 13, there would be nothing the government could do to directly stop that process either, Shwartz Altshuler said.

The government’s declaration might have a chilling effect on the remaining council members and cause them to postpone a decision, at least until the High Court issues its final ruling on the broader issue of the council’s composition, although even that is not certain, Shwartz Altshuler noted.

In this respect, there is no real constitutional crisis here because the government’s declaration is irrelevant to the ability of the agency in question to act, and the legal consequences of those actions.

The wider significance

But the declaration does have a deep and weighty impact on the idea of the rule of law, the government’s fealty to the law, and the entire concept of a democratic country being governed by the law without any exceptions, including the government, its agencies, its ministers, and all the way down to the individual citizen.

By declaring that it does not view the High Court’s ruling on the Second Authority council as valid, the government is essentially laying the ground to disobey other rulings that it disagrees with.

“This is a very dangerous and reckless statement, which crosses the Rubicon and creates an opening for other government agencies, and perhaps even citizens, to say they can defy the court when they disagree with its decisions as well,” said Adam Shinar, a professor of constitutional law at Reichman University.

The current government has tussled with the judiciary from day one of its tenure, making unlawful decisions which the court has reversed, passing unconstitutional legislation which the court has struck down, and seeking to change the very make-up of the judiciary through legislation the court appears likely to strike down too.

Cabinet ministers, including Karhi, have called on numerous occasions for the government not to abide by court rulings, while the government itself has failed to implement a court order to draw up economic sanctions against ultra-Orthodox draft dodgers, and National Security Minister Itamar Ben Gvir has repeatedly ignored court orders not to politicize police promotions and not to intervene in operational police decisions.

Sunday’s more brazen declaration appears to be the continuation of this pattern, where the government further tests its ability to defy the High Court as well as its power to normalize such behavior in the eyes of the public.

With elections just a few months away, the government appears especially eager to form a battleground against the court as a campaign platform to rally its base to the cause of defeating the legal “elite,” so that the true will of “the people” — as Karhi frequently declares — can be implemented.

The government had appeared set to defy the court over its decision to order the Knesset to redo the vote for state comptroller, but its candidate, Michael Rabello, apparently nixed that option since he was unwilling to defy the court.

Instead, the government appears to have alighted on the Second Authority imbroglio as its next best option.

“It’s a knife fight for their [political] base, the viewers of [the pro-government] Channel 14,” said Shwartz Altshuler.