Supreme Court Justices to Government: You Are Putting Public Servants at Risk of Lawsuits; All Must Act According to the Law

The justices in the Supreme Court case on the Second Authority announced they had received the government's notice, initiated by Karai and Levin, and warned that failure to comply with a court ruling could expose public servants to lawsuits. "There is room to reiterate fundamental principles. Public officials are required to act in accordance with the law," wrote Amit, Stein and Ronen. The implication, and the minister's response: "A threatening message reminiscent of protection racketeers"

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The justices in the Supreme Court case on the Second Authority warned this morning (Tuesday) that government ministers are putting public servants at risk of civil lawsuits if they fail to honor court rulings, and that personal immunity will not apply to them.

"These basic principles apply both to the actions of elected officials and to the actions of public servants, all of whom must operate according to the law. With regard to the latter, it should be noted that when public servants act contrary to judicial decisions, this may, in appropriate cases, mean that the personal immunity from tort claims does not apply (Section 7a of the Torts Ordinance [New Version])," wrote Supreme Court President Yitzhak Amit and Justices Alex Stein and Ruth Ronen.

In their notice the justices wrote that "it seems appropriate to reiterate fundamental principles" and quoted prior rulings: "The duty to obey and respect court rulings is among the basic conditions on which a regime of law in a democratic state rests. Without compliance with court rulings, the principle of the rule of law is undermined and the social order begins to crumble. Everyone does what is right in their own eyes, and the distance between the rule of law and anarchy is as thin as a thread."

They added, "Non-compliance with a court ruling by a citizen is a serious manifestation of harm to the rule of law. It is twice as serious when a governmental authority fails to comply. A state in which an authority takes the law into its own hands, complying with a judicial order when it chooses and ignoring it when it chooses, is a state where seeds of lawlessness and anarchy are sown and a dangerous culture of rule by force and arbitrariness develops."

When a citizen violates or acts contrary to judicial decisions, a contempt of court motion can be filed, and if granted the court may impose fines or even imprisonment. This is not the case with elected officials and public servants. To date such motions have not been granted, and the Supreme Court has not established precedent on the matter because of legal difficulties in enforcing contempt against public servants and even more so against elected officials.

The justices now clarify that another tool exists to enforce compliance: tort claims. Citizens and companies may file personal lawsuits against a public servant who acted contrary to a judicial decision and caused them harm. The justices specified that such claims can be brought against public servants, meaning state employees, but not against elected officials such as ministers or the government.

In the context of a "constitutional crisis," when a civil servant must decide whether to obey the government or the court, the justices make clear that a public servant who chooses not to follow the court risks a civil tort suit, even if a contempt motion is unlikely to succeed. The issue of enforcing compliance by public servants with court rulings arose in the recent Supreme Court hearing on the police failure to arrest draft evaders. After the hearing the police began to act.

Finance Minister Bezalel Smotrich responded to the Supreme Court notice by attacking the justices: "The legal mafia has moved to extortion by threats. This is exactly how a threatening message reminiscent of protection racketeers sounds. What is the next stage? Envelopes with bullets sent to government offices? A horse's head in a bed? A bottle of gasoline on the vehicles of elected officials? Extortion by threats is a criminal offense that requires a police investigation. No one is above the law, not even Yitzhak Amit or Gali Baharav-Miara. We will also defeat this protection racket at the ballot box."

The Supreme Court response comes against the backdrop of the government's unanimous decision on Sunday not to honor the Supreme Court ruling regarding the Second Authority. The government stated: "You have no authority to trample the law; a ruling contrary to the law will not be recognized and decisions made under it are void." This followed the government's approval of the proposal by Communications Minister Shlomo Karai and Justice Minister Yariv Levin declaring that it would not recognize any decision, approval, appointment or action by the Second Authority Council as long as it does not meet the explicit threshold conditions set by law. Among those decisions is the possible approval of the sale of Channel 13 to the "Hightechists Group."

The government's declaration was met with astonishment in the legal system. Legal sources assessed that it would harm Israel's standing abroad and could lead to measures against it in international tribunals. They emphasized that this was an unprecedented move reflecting the government's intensified attitude toward the rule of law. In their view, this step, together with the split of the Attorney General's office and changes to the judicial selection process, marks a complete regime change, shifting Israel from a substantive liberal democracy to a merely formal one.

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