Justice Minister Ayelet Shaked must not have been in Israel in recent years, which would explain why she keeps saying that “war between the [legislative and judicial] branches” could develop. The fact is that the war between the branches has been raging for years. It is mainly manifested in frontal attacks on the Supreme Court by a flood of legislative proposals designed to curb the court’s powers and independence, as well as in declarations by politicians – including Ayelet Shaked, who seems to be a different person than Minister Shaked – furiously attacking the rulings by the court and accusing it of exceeding its mandate.
Shaked’s latest remarks constitute a threat against the bench with respect to a matter standing before it. In other words, if the justices agree to hear petitions against the nation-state law, it will be a declaration of war. War is war and her comments are part and parcel of the government’s attack on the court.
Minister Shaked seems to have missed the lesson on the independence of the judiciary. If she had been there, she would have heard that a judicial system is worthless if it isn’t independent. Appointing judges based on how much they agree with the worldview of the justice minister, and levelling threats at the courts, undermine that independence. The attack on judicial independence in Israel is especially perilous because in contrast to most democracies, the status and powers of the court are not protected by law.
Israel of all countries needs to recognize the court’s authority to intervene when a constitutional (i.e., Basic) law is involved – to the point of overruling it. Israel has no system of checks and balances like other democracies have, such as having two legislative houses, decentralization of power between states or regions, an obligation to be subject to international treaties or international courts, and so on.
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There is no real separation between the legislative and executive branches in Israel, and the Knesset’s oversight of the government is not worth much either. The executive branch controls legislation by dint of its majority. The Knesset, and in effect the government, is both the legislative branch and the constitutive authority.
Enactment of constitutional (Basic) laws can be accomplished by a regular majority and ordinary legislative procedures. The only element in the legal system with the power to impose checks and balances is the Supreme Court. No wonder those aspiring to absolute rule are acting to castrate it.
Let's say the Knesset were to enact a law enshrining the supremacy of men over women, of heterosexuals over homosexuals, of whites over blacks, of soldiers over people who do not serve in the military and so on. According to Shaked's approach, the court would have to say “Amen.” How much does the nation-state law – which is in effect a Jewish supremacy law – differ from these examples? And if this is so, our judicial system has become wide open to tyranny, arbitrariness and discrimination, unfettered and unrestrained.
The philosopher John Rawls devised a political thought experiment about how to set up a just society: try making political decisions while imagining you are behind a “veil of ignorance,” where you don’t know your religion, nationality, social class or other affiliations. In such a scenario, no sensible being would agree to give a government the kind of power granted to the nation-state law.
That is why conservative, non-activist judges – such as the late Supreme Court deputy president Mishael Cheshin – believed in the authority of judicial review also when it comes to Basic Laws, by virtue of overriding principles.
Among judges today, the real question isn’t whether the court has such power, but rather: When an overriding principle has clearly been trampled, does it demand juridical intervention – which may reach the level of revoking a law or one of its provisions (when the problem can’t be fixed by a lesser intervention)? Note that human rights legislation that was enacted in Israel, which until recent years had been a source of pride to all, was only born thanks to the creative approach of Supreme Court justices during Israel’s first decades of existence.
There are examples of courts that conduct judicial review of its Basic Laws without explicit constitutional authority to do so, such as in India and Brazil. Shaked is also aware of this possibility, or else she wouldn’t have taken the trouble to try and void that power in her proposed amendment to the Basic Law on Legislation, which includes a clause bypassing the Supreme Court. That proposal is in the spirit of the authoritarian constitution of Hungary, Israel’s newest ally, competing with it over who is more nationalist and who tramples the most human rights.
Shaked has not tired of repeating the untruth that before the nation-state law, the court did not have tools to defend the Jewish character of the state. The fact is that Israel has always been the place where the Jewish people realized its right to national self-definition, both as a political position and as a constitutional and super-constitutional principle. There are values in Israel that are equal in importance to its Jewish ones – such as the democratic character of the country – but none that supersede. Thus, the nation-state law has nothing to add to this.
The justice minister says in the same breath that the law does not harm minorities, and also that it aims to change the balance between democracy and equality and the national-Jewish character of the state (hence the opposition to mention of the word “equality” in the law).
But how can this magic be done without harming minorities? How can the state’s duty to promote and encourage Jewish settlement under the nation-state law not be accomplished at the expense of non-Jews?
Shaked also presents the law as consensual. How can a law that separates Jews into two camps, and sparks sweeping opposition by all non-Jews, be consensual? And whence the imperviousness to the intolerable humiliation of non-Jews, who find themselves beyond the pale?
The truth is completely different. In their heart of hearts, many of the members of the coalition know that the nation-state law has cooked their goose, but they lack the courage and integrity to admit it.
The Supreme Court would be doing a favor for the state and its people – including the coalition – for the Zionist vision and Israeli citizenship, for the relationship with world Jewry, and for Israel’s status among the nations, if it relieves us from the wrongs and ills of this legislation.