If politics is, as German statesman Otto von Bismarck once said, “the art of the possible,” then law is sometimes “the art of the impossible.” It seems there is no tangle legal experts cannot untangle if they put their minds to it. As a shrewd politician once put it, “I don’t look for a lawyer who will say ‘no’ or tell me ‘if,’ but rather one who will tell me ‘how.’ ”
Thus, the hope in some quarters that Israel’s legal system will rule out a retroactive and personalized law–one that will prevent Israeli Prime Minister Benjamin Netanyahu from forming a government—may be ill-founded.
Proper legislation is enacted behind a “veil of ignorance.” It does not favor one individual over another but rather advances a general aim worthy in and of itself. It looks to the future rather than concentrating on the present; it is oblivious to current events, serving, above all, the interests of the public, not just parts thereof.
Bespoke legislation aimed at a specific individual constitutes a fundamental violation of the rule of law. Often it also violates the basic principle of the separation of powers, as well as the “royal” principle of equality before the law—a cornerstone in any lawful regime worthy of the name.
Nevertheless, Israeli law from its very beginnings has been rife with bespoke legislation. Not one or two, but dozens of laws have been passed that were obviously directed at specific individuals.
In Israel’s early years, a law was amended to appoint historian and Talmud scholar Simha Assaf as a Supreme Court justice. Despite his scholarly merits, Assaf had never studied law, nor had he ever worked as a lawyer. The amendment stated that a Supreme Court justice could be a “true expert of the law”—a particularly vague formulation that, in Hebrew, is rendered by a linguistic innovation that differentiates between the “expert” and the “lawyer.”
Similarly when, for strictly political reasons, a need arose to allow the chairman of the Histadrut labor federation and the head of the National Labor Federation to simultaneously serve as Knesset members, the law of immunity for MKs was amended. The new law stated that, although an MK could not fulfill another role (such as mayor), the prohibition would not apply to individuals heading workers’ organizations.
When politicians sought to legalize the broadcasts of the now-defunct Channel 7 radio station in the 1990s, a special law was passed to prevent the channel from complying with the conditions of the tender applied to other local and special-purpose channels. In this case, the law was eventually struck down by the High Court of Justice.
In another case, the law was amended to prevent Yigal Amir, the assassin of Prime Minister Yitzhak Rabin, to appear before a parole board like other prisoners in order to request that his life sentence be shortened.
These are just a few examples out of many.
Needless to say, bespoke legislation is never formulated in an overtly personal manner. Its general formulation conceals—for those unaware of the political background—the legislation’s personal dimension. Thus, for example, in Amir’s case, the law applies to “a prisoner for life convicted for the assassination of a prime minister for political-ideological reasons”—as if many more such assassins were at large.
In principle, the retroactive application of a law is also foreign to the true rule of law. A law, by nature, is intended to direct future behavior and to guide citizenry toward the path they must take and the actions they should perform or avoid.
When legal consequences—certainly, those pertaining to criminal law, but others as well—are applied to actions taken in the past, any individual can, in theory, be arbitrarily turned into a criminal.
However, in this case, theory is one thing and reality another. Although the court has often expressed its reservations with respect to retroactive legislation, it has generally avoided disqualifying such legislation. In the rare cases when such laws were disqualified, the court based its decision on the principle of equality. Yet even in such cases, and despite its “activist” image, the High Court does so sparingly.
Thus, the chances are very low that the court will disqualify legislation aimed at preventing Netanyahu from forming a government.
Professor Aviad Hacohen is dean of the Sha’arei Mishpat Academic College and a senior lecturer in Constitutional Law and Jewish Law at the college, and at the Faculty of Law of the Hebrew University of Jerusalem.
This article first appeared in Israel Hayom.