Who prevented making it a requirement that anyone entering or returning to Israel must demonstrate that they had a recent corona test which was found to be negative?
A battle between different versions is raging between the Ministry of Health and the Ministry of Justice. The requirement of negative corona tests on those entering Israel would probably have helped prevent or at least reduce the spread of the corona virus and the various mutations that came from overseas.
The debate began when Health Minister Yuli Edelstein claimed that the reason the test was not required was that the Ministry of Justice and the Attorney General said that there was a legal barrier to this requirement. The Ministry of Justice has now denied this, in spite of evidence to the contrary.
So who should be blamed? Should we blame the politicians who didn’t insist, or the members of the judicial system who claimed that there was a legal barrier to this requirement?
This case is just one example of something we have seen many times before: the flexibility and lack of clarity of the law. Legal barriers, legal obstacles, legal difficulties, and more. How many times have we encountered the use of these terms? These concepts are amorphous and unclear. Their purpose is to put power in the hands of the judges and others in the judicial system to do as they please.
When concepts are amorphous and unclear, their purpose is to put power in the hands of the judges and others in the judicial system to do as they please.
Another example, one of many, that demonstrates the amorphous concept of a legal obstacle, occurred when Attorney-General Mandelblit informed the then Minister of Justice, Amir Ohana, that there was a legal obstacle to the appointment of Ohana’s candidate, Dan Eldad, for the position of head of department at the State Attorney's Office.
Mandelblit claimed that there was only one candidate, Mandelblit’s candidate, who was suitable for this position. Somehow, as a result of the Minister of Justice’s refusal to back down and the public outcry, this legal obstacle disappeared. However, this mysterious legal obstacle reappeared when Ohana, now in a caretaker government, wanted to extend Eldad’s term. Not only was Eldad’s extension denied, but Mandelblit decided to take on the position of head of department at the State Attorney's Office himself, in addition to his role as Attorney-General and in spite of his intrinsic conflict-of-interest.
Mandelblit did not invent the use of amorphous terms to impose his views on elected officials. For many years, Attorney-Generals and judges used these terms to determine what elected officials are allowed to do and what they are prevented from doing. These rulings are based solely on personal interpretations and ideology with no basis in law or the intent of the legislature. This abuse of the judicial system began with the “Constitutional Revolution” initiated by Aharon Barak when he turned the act of judging into an art form. He interpreted the Basic Law of Human Dignity as he wished and rejected many laws on the basis of his personal interpretation.
One of the base line in contracts law is that a good contract should be simple and understood not only by judges, but by the common man. The use of amorphous concepts removes the ability of common people to understand the law, and denies them the possibility of relying on the law to disagree with a ruling. By using amorphous concepts, judges seize power over other human beings, leaving the ordinary person ignorant as to what is allowed and what is forbidden, what is right and what is not.
In addition, not only has the law been taken out of the realm of the understanding of ordinary people, it has also been taken out of the understanding of lawyers. In a shocking ruling on contract law referred to as The Apropos Judgment, Barak ruled that the contract should be interpreted according to its purpose and not according to its language. Lawyers who deal with contract law do not know how the court will interpret the contract they write, for the judge has unlimited power to interpret the contract as he sees fit, even if the contract is simple and clear.
The purpose of law in a democracy is not to be a sword in the hands of judges to be used against other human beings. Its purpose is to regulate life in a way that ordinary people can understand and in a way that promotes justice and maintains public order. All the power of the justice system (and other systems) in a democracy is supposed to stem from what citizens give it. Using amorphous terms and removing the law from the public’s understanding is to impose the will of one person on another. This undermines public trust and ultimately the legal system itself.
So who is to blame? Of course, the responsibility is on the judges who have usurped the legislative power, but no less responsibility falls on the elected officials who do not do enough to stop it.
Yotam Eyal is the director of The Legal Forum for Israel which dedicates itself to fight for justice, submits appeals and law proposals to correct the many faults in the current system, writes reports and articles for the media, gives lectures and publicizes the current situation. Its goal is to educate the public and the legislators as to their rights in a democracy. so that the will of the voters in Israel will once again be actualized and will not be rejected by the unelected judges and members of the judiciary..