In Contempt of Court
by Nathan Lewin
Jerusalem Post - December 11, 1997*
The abrupt end of the general strike is viewed as a triumph for Amir
Peretz and the Histadrut and a defeat for Yaakov Neeman and the Finance
Ministry. Little attention is paid to the rule of law. It was the
greatest loser.
Attorney-General Elyakim Rubinstein briefly entered the arena to declare,
entirely correctly, that the Histradrut's decision to defy a labor court
order had brought Israel to the verge of anarchy. Bending to the public
clamor to end the strike, the labor court swallowed its pride. It chose
not to uphold its own decree and invited Peretz, who had flouted the
earlier court orders, to negotiate under its aegis with the Finance Ministry.
This was a short-sighted capitulation to immediate needs.
In typical Israeli style, the country has lurched through a tumultuous crisis
and it will now accept the restoration of the daily routine without learning
any lessons. The work stoppage, its enormous cost, and its gross
disruptions and inconveniences will be written off as the cost of giving in
to a vigorous labor constituency. The court orders prohibiting the Histadrut
from calling a strike will be quickly forgotten and end up in the trashbin
of history.
That will be a great tragedy and an invitation to repeated incidents of this
kind. Bad enough that visitors to Israel and residents of the country refer
wryly to the unpredictability of frequent labor stoppages. Israel's
detractors will cite these recent events as proof that it is truly a banana
republic in which the elected government and the courts are powerless to
prevent unlawful conduct that can grind the nation's economy to a halt.
When the United States was faced with a similar challenge fifty years ago,
the Supreme Court forcefully repudiated the shenanigans of an American
counterpart of Amir Peretz. The President of the United Mine Workers of
America, a fiery beetle-browed labor leader named John L. Lewis, made a
career of defying the federal government and the courts. Coal-mining was
an essential industry in post-World War II America, and Lewis's militant
wage and pension demands, backed up by frequent walk-outs, threatened to
disrupt the economic transition from war to peace. President Harry Truman
ordered the federal government to take over America's coal mines in May 1946.
This led to the signing of a labor contract between Lewis and the secretary
of the interior.
Lewis unilaterally terminated the contract five months later and demanded
better terms for his union members. The government claimed the agreement
was still in effect but agreed to negotiate. In order to strengthen his
hands in the new talks, Lewis called a national strike. The government
went to court to prevent the strike and, without notifying Lewis or giving
him an opportunity to be heard, the district judge issued an order
prohibiting the strike for a period of 10 days. Lewis ignored the order
and stuck.
The government did not negotiate with Lewis. It went to court to seek
civil and criminal contempt remedies against Lewis and his union. After a
brief trial, the defendants were found guilty. Lewis was fined $10,000 and
the union was fined $3.5 million enormous sums in those days. The
district court again prohibited the strike.
Lewis's lawyers appealed the fines, but the government's lawyers leapfrogged
the Court of Appeals and sought to bring the case immediately before the
Supreme Court. The final result was a landmark decision vindicating the
authority of the rule of law in a civilized law-abiding society.
It is an accepted proposition of American law "that an order issued by a
court with jurisdiction over the subject matter and person must be obeyed
by the parities until it is reversed by orderly and proper proceedings."
Lewis and his union were heavily fined for their disregard of the court
order. Even Justice Felix Frankfurter, who agreed with Lewis's ultimate
legal argument that the district court had no power to issue the injunction,
said that in "a government of laws and not of men" an order of a court may
not "be disobeyed and treated as though it was a letter to a newspaper."
Frankfurter's warning could be applied to Peretz and to Israel's judicial
system: "There can be no free society without law administered through an
independent judiciary. If one many can be allowed to determine for himself
what is law, every one can. That means first chaos, then tyranny."
The writer is a Washington lawyer who teaches at Columbia Law School
and is former president of the American Section of the International
Association of Jewish Lawyers and Jurists.
* Reprinted with the permission of the author,
Nathan Lewin
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