A New Constitutional Revolution

How is it possible that a justice minister brings for approval legislation on Basic Laws without first gaining the approval of the coalition partners?

Justice Minister Daniel Friedmann will present the cabinet committee on legislation with 33 bills today, most of them sponsored by different MKs. Toward the end of the meeting, almost as an afterthought, bill number 29 on the committee's agenda will come up for discussion. The law, proposed by MK Michael Eitan, is a veritable constitutional revolution.

According to the Basic Law on Human Dignity and Freedom, the court has the power to rule that a law legislated by the Knesset is unconstitutional, and to declare it void. This power is what gives the Basic Laws their constitutional standing, and allows them to supersede all laws that contradict it. Now along comes the justice minister to ask the committee to approve a proposal that would remove any law pertaining to restriction of entry into Israel, or residency or naturalization, from the body of laws that can be voided by the court for contravening a Basic Law. With regard to such a law, the court would only be able to declare that it contravenes a Basic Law, but its ruling would have no practical significance, except in that it would require the Knesset to deliberate the subject within 90 days.

One need not be an expert on Israeli politics to know that Knesset deliberations on the court's rulings will not bode well for families seeking to reunite with their non-Jewish family members. Most likely, such a discussion will lead to naught, and Israel will be left with a law passed by the Knesset and ruled unconstitutional by the court, which nonetheless remains in effect despite the court's ruling. Nor does one need to be an expert on Israeli politics to know that if there is a precedent for the practical voiding of the constitutional standing of one Basic Law - this will become the fate of all Basic Laws.

Since the legislation of the Basic Laws, the court has conducted itself with great restraint when deliberating cases in which it was argued that regular laws contradicted them. In the few cases when the court ruled that a law was unconstitutional, the Knesset also behaved with restraint and did not rush to legislate laws meant to circumvent the rulings. This is the desired situation in a constitutionally anchored system that is based on checks and balances, and this is what MK Eitan and the justice minister wish to destroy. One can certainly imagine that the court will become less restrained in its rulings, sticking closer to theory and less to practice, if it knows that its rulings have only declaratory significance and lack real practical importance. Such a development would not be desirable for Israel.

If the country's book of laws includes one that discriminates between different groups, and one that has been ruled unconstitutional by the court but left in place by the Knesset, this would grant significant validity to the claims being heard around the world against Israel, that it is an apartheid state. The existence of the Basic Law on Human Dignity and Freedom, of effective judicial review, and of a judiciary that is independent of politicians, seriously bolsters Israel in its argument with its critics around the world.

Menachem Begin understood this well. When the late prime minister said that "there are judges in Jerusalem," he contributed greatly to strengthening Israel's international standing, and it is hard to believe that the Likud leadership today, Begin's successors, is turning its back on his legacy. It is also hard to believe that there is a member of the cabinet who is tirelessly working to destroy this important asset.

The background to this debate is the government's failure in its responsibility to shape an immigration policy for Israel, opting instead for legislation that is contrary to the Basic Law on Human Dignity and Freedom. This is a mistake that undermines the democratic element in Israel's identity. This approach must also be opposed by the interior minister: From his point of view, the best option must be an initiative to formulate an immigration policy that is suitable for Israel and fitting its values.

The justice minister and MK Eitan are rushing into the vacuum created by the government's failure. The minister is bringing to the committee a bill that Eitan proposed two years ago. It may be that the timing is tied to Friedmann's obsession about anything that has to do with the authority of the Supreme Court. Two weeks ago he was forced to shelve a memo on a Basic Law that he circulated, according to which the court would not have judicial review on legislation pertaining to entry, residency and naturalization in Israel. When it was made clear to him that he cannot legislate Basic Laws without the agreement of all coalition partners, and that even those closest to him had expressed opposition to the proposal, he pulled the memo, at least for the time being. But with Friedmann, instinct overcomes reason, and when the door is shut before him, he will try the window; thus, Eitan's two-year-old proposal is being brought back to the fore.

This proposal needs to be rejected and shelved. There is broad agreement in Israel on the need for a constitution. The Knesset Constitution, Law and Justice Committee has invested great effort in this. The prime minister has declared it as an important goal of his government, and the coalition agreements reflect this. What is the point of working on a constitution when even the minimal constitution that does exist is being depleted of all meaning? How is it possible that such an important constitutional revolution can be brought before the cabinet committee for legislation without any public debate taking place - even among the Knesset factions? Another question that should be asked is how is it possible that a justice minister brings for approval legislation on Basic Laws without first gaining the approval of the coalition partners, as the coalition agreement requires him to do?