Israel's Justice Minister Warns of 'An Earthquake' if Top Court Kills Nation-state Law

The High Court has never been conclusive on whether it has the authority to overrule a Basic Law – the controversial nation-state law might be the litmus test

Justice Minister Ayelet Shaked, June 2018.
Meged Gozani

Justice Minister Ayelet Shaked on Sunday addressed for the first time the possibility that the High Court of Justice could overturn the nation-state law, saying, “Such a move would be an earthquake, a war between the authorities.”

Shaked made the remarks in an Army Radio interview, during which she explained that she didn’t believe the High Court had the authority to disqualify Basic Laws.

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“The High Court justices are very serious and professional people,” she said. “The Knesset is the constituent assembly, which defines and determines the Basic Laws. They have to interpret the laws in accordance with the Basic Laws, and I don’t believe a majority on the Supreme Court will decide to take such a step.”

About the possibility the High Court of Justice would overturn the law, she said, “I very much hope that this doesn’t happen and I don’t believe it will happen. This particular law has nothing revolutionary in it. It contains the values on which the state was founded, values of settlement, immigration, and national identity. There is a consensus about these values.”

During the interview she reiterated her support for the nation-state law. “Over the years, the court has given great weight to the democratic value, to the values of equality, and I think that in certain cases, this came even at the expense of national values. The nation-state law comes to give the High Court of Justice a tool to take national [values] into account, too,” she said.

The justice minister also referenced the outcry against the nation-state law and said that the law does not harm minorities, but explained that action should be taken to “deal with the pain of the Druze community.” There is no need, she said, “to categorize them as leftists or as those who want to undermine the government.”

The High Court of Justice will have to deal with the nation-state law due to petitions that have been or are planned to be filed against it. The first such petition was filed by Druze MKs Akram Hasoon, Hamad Amar and Saleh Saad, and the first hearing on it is scheduled for January. Another petition was filed by the Meretz party, while on Monday representatives of the Bedouin communities in the north and south plan to file an additional petition. A fourth petition is expected to be filed by Adalah – the Legal Center for Arab Minority Rights and the Association for Civil Rights in Israel.

The question of whether the High Court of Justice can overturn Basic Laws has come up over the years but has never been decided. The first intervention by the High Court in a Basic Law was in the case of an amendment to the Basic Law on the State Economy, which allowed the drawing up of two-year budgets, but which violated a different Basic Law, which states that the Knesset will approve the budget once a year. In 2017, an expanded panel of High Court justices ruled that the Knesset could not pass a two-year budget as an emergency measure. In this case, at issue was a temporary law, and the reason for disqualifying it was that the Knesset had abused its authority.

In its decision this year to dismiss petitions against the Impeachment Law, the justices addressed the possibility of voiding a Basic Law on grounds that it was unconstitutional, but did not decide on the issue. Supreme Court President Esther Hayut said that until all the Basic Laws are passed that are meant to complete the state’s constitution, “there is considerable difficulty” with the High Court overturning Basic Laws, even though high courts all over the world have recognized their right to disqualify amendments to a constitution. Justices Uzi Vogelman and Menachem Mazuz expressed a similar opinion.

However, in the ruling last year on the issue of the two-year budget, Deputy Court President Hanan Melcer listed some grounds for disqualifying a Basic Law, for example, “if it deviates significantly from the most basic foundations of the values of the state and the people, or of the prevailing legal system." In parenthesis, Melcer wrote the following: “For us this could be applied, for example, to the essence of Israel as a Jewish and democratic state.”