The High Court's doomsday weapon
the High Court of Justice has, about once a decade, issued a ruling declaring that if the Knesset tries to harm Israel's democratic system, the court would have to prevent that.
Supreme Court President Aharon Barak, who is about to retire, and the recently retired deputy president, Mishael Cheshin, took advantage of the ruling in the Tal Law case to make a series of near-historic constitutional statements. It seems that the Tal Law served merely as an excuse and background for these statements. Barak, for example, utilized the ruling to make clear how and when it is possible to abrogate laws that contradict the principle of equality. He thereby settled the most important constitutional question of the past decade. He summed up: "In our ruling we determined that equality is included in human dignity. We also determined that equality is granted supra-legal constitutional standing."
But the most important sentence in the ruling did not deal with the Tal Law, nor even with the equality issue. It was Barak's assertion that "there is room for the idea that a law or Basic Law that denies Israel's character as a Jewish or democratic state is unconstitutional." In other words, the court could abolish a law, or even a Basic Law, that seeks to nullify or impair Israeli democracy or Israel's character as the state of the Jews. And it would do so even if there is no law or Basic Law upon which the court could base its ruling. Barak explained: "The people, the sovereign, did not authorize our Knesset to do this. The latter was authorized to act within the framework of the basic principles of the regime. It was not authorized to annul them."
The Knesset may have a weak image, but the truth is that in the absence of a constitution, its powers are almost unlimited. Is the Knesset allowed to turn Israel into a fascist dictatorship or into a state governed by religious law? Is it entitled to cancel the Law of Return? Throughout the state's 58 years, the High Court of Justice has, about once a decade, issued a ruling or statement that makes it clear that if the Knesset tries to harm Israel's democratic system or its character as a Jewish state, the court would have to prevent that. These assertions can be designated the High Court's doomsday weapon.
The truth is that the High Court has already issued a ruling once in practice that did not rely on any written law. That was in 1965, in Yardor v. the Chairman of the Knesset Elections Committee. The court upheld the committee's decision to disqualify the El Ard list, which denied the State of Israel's right to exist, even though there was no law regarding the disqualification of lists. Justice Yoel Sussman, later president of the Supreme Court, explained in the verdict that "just as a person is not obligated to consent to be killed, so a state is also not obligated to consent to be annihilated." But the Supreme Court never put the matter as clearly and vociferously as it did in last week's ruling.
Barak and Cheshin disagree about many things, but there is no doubt that they agree on the principle that the court is authorized to nullify laws and even Basic Laws that contradict the fundamental principles of the regime. "None of the branches of government is authorized to 'abolish' the state as a Jewish and democratic state," maintained Cheshin, writing for the minority in the Tal Law ruling. He even brought an example of a law that would be overturned: "This would be the case were a law to block the means of turning to the court."
Cheshin believed that this principle should also be applied to the Tal Law. In his view, a law that allows for not drafting nearly 50,000 yeshiva students undermines "the state's value of existence and survival" and deserves to be overturned. Barak agreed that "the service deferral law deals a severe blow to human dignity," but stipulated that "it does not violate democracy's core." The framework of laws that the High Court is entitled to overturn without a constitutional basis is narrow, Barak clarified, and the Tal Law is far outside its boundaries.
The assertion that there are laws and even Basic Laws that the Knesset is not entitled to pass is without a doubt part of the heritage, and perhaps also of the legal ammunition, that these two retiring judicial luminaries are bequeathing to their successors. The great fear, of course, is that a government that initiates and passes laws of this type in the Knesset would no longer heed the High Court.