The wave of criticism over the proposed Basic Law on Legislation, introduced by Justice Minister Yaakov Neeman, was followed by a second wave, this time of support for the law, despite its major fault: It makes it possible for the Knesset - with the support of 65 MKs - to re-legislate a law that was disqualified by the Supreme Court for being non-constitutional. Supporters of the proposed law claim that it recognizes the authority of the high court to disqualify laws, and that if passed, the Supreme Court will recover some of its lost prestige and will regain some legitimization it has lost due to its over-activism.
This widely held concept of blaming the victim for his disaster, is outrageous and destructive. True, part of the Supreme Court's delegitimization springs from the fact that its composition is too white, and that the protection it gives to human rights is selective and slanted by religion, ethnic origin, nationality and a neo-liberal attitude. But most of the damage to the Supreme Court comes from the incitement against it.
The incitement was started by politicians and people on the right who were defined as extremists; it continued with the wretched phrase uttered by Yitzhak Rabin when he was prime minister - "without the High Court of Justice and without [the human rights organization] B'Tselem" - which immediately turned the supreme court into a left-wing body that stands in the way of beating terror. The incitement found expression in the large ultra-Orthodox demonstration and campaign on behalf of [convicted Shas leader] Aryeh Deri; in then-prime minister Ariel Sharon's saying that "whenever you do something - the high court is there"; and it found expression in the remarks and actions of Daniel Friedman when he was justice minister, as well as in the way right-wing politicians continue to express themselves on a daily basis.
The delegitimization of the Supreme Court does not stem from the fact that it dares to disqualify laws, since it has very seldom done so. Moreover the government knows very well to what extent the court is reticent about disqualifying laws. Therefore legislators often pass into law what should actually be administrative orders, because the legislators know these are problematic from a constitutional and democratic point of view. This has been the case since the 1980s, with the Economic Arrangements Law. And it is the case even more so recently, with the bi-annual budget, passed as a Basic Law: Temporary Order, cancelling budgets from bodies that mark the Nakba in a law, and so forth.
The list of laws that is currently being planned by the right (which was published Sunday in Haaretz ) does not leave room for doubt about the purity of intentions of the Basic Law on Legislation. One of them sets the hours of the day during which people can be evicted from their homes that are to be razed. This law will be greatly appreciated by the residents of the Bedouin village of al-Araqib and by those of the poor Tel Aviv neighborhood of Kfar Shalem. It was not intended for them, however, but for the settlers - a fact that is not hidden by National Union MK Yaakov Katz, who proposed it. Another draft law proposes that if the defense minister does not approve a tender for construction in Judea and Samaria within three days, it will be considered as having been approved. Now even if this legislation is disqualified by the high court, the Knesset will be able to re-legislate it with the majority it has in the current coalition. How convenient.
Now this coalition, speaking through MK Danny Danon (Likud ), is saying, "We will not accept another court ruling like the one handed down on Migron." So the coalition proposes the Basic Law on Legislation, which will allow the Knesset to pass a law that was disqualified by the Supreme Court - by a majority of votes that, just by chance, happens to be the same as the number of MKs in the current coalition.
And this law, which just by chance is being introduced right after the Supreme Court has cancelled the Tal Law (granting deferments for the ultra-Orthodox to the army ), by a right-wing justice minister who is close to the ultra-Orthodox and who went back on a balanced proposal for this legislation from a committee he himself headed. This way, the coalition will be sure not to get another ruling like the one on Migron from the Supreme Court.
No doubt that a Basic Law on Legislation is necessary. We are once again holding the same type of debate we held at the height of discussion about the "constitution by consent," which was drawn up by the Israel Democracy Institute. The sense, once again, is that "this is the best we can get, so let's take it."
But no, not at any cost. If the Basic Law on Legisaltion means that Israel agrees officially and festively to the legislation of laws that harm human rights and minority rights and now we're merely arguing about the number of MKs needed to do that, then we are better off without it. Even if those who fear that this is the best offer we will get, are right, it is better for the struggle to continue. At least there will be no such wonderful agreement over the forgoing of the "democratic" part in the mantra of the "Jewish and democratic" state.
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