The Israeli Right Wing’s Newest Assault on Israel’s Jewish and Democratic Character

In the eyes of Israel’s right, led by Ayelet Shaked, the Supreme Court is an arena of wild-eyed radicals. But the judges are Israel’s last defense against the supremacy of territorial control over human rights.

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Jewish Home's Ayelet Shaked.
Jewish Home's Ayelet Shaked. Credit: Eyal Toueg
Gershom Gorenberg
Gershom Gorenberg

Ayelet Shaked thinks it's time to put Israel’s Supreme Court in its place, to teach it who's really in charge around here. Shaked, chair of the Habayit Hayehudi [Jewish Home] delegation in the Knesset, wrote on her Facebook page that " time after time," the country's highest court has "appropriated powers that do not belong to it." In the proper balance - or rather imbalance - of power, the judicial branch should remember that "the Knesset must be sovereign," she wrote.

Israel's Supreme Court in Jerusalem.Credit: Emil Salman

The post expressed her pique last month when the court overturned legislation that allowed the state to jail "infiltrators" - in real life, African asylum-seekers - without trial. The justices based their decision on the Basic Law: Human Dignity and Freedom, the cornerstone of this country's incomplete constitution. This week Shaked could post what she considers better news: The Ministerial Committee on Legislation is set to decide next Sunday whether the government will back her proposed amendment to the Basic Law.

Under Shaked's bill, the Knesset could reinstate, by a vote of 61 members, a law that the Supreme Court has overturned. Explaining the proposal, Shaked has said that when there's a disagreement about values, "there is no justification for preferring the judge’s world of values to that of the public and its elected representatives."

Translation: The judges' values required preserving the rights of a powerless minority, in this case strangers seeking refuge. The values of the majority of elected representatives required keeping strangers off our streets. Shaked has phrased her argument as a constitutional one about the proper relation of branches of government. In her view, democracy means unfettered rule of the majority. It's illiberal democracy. The judicial branch shouldn't get in the way.

To be fair, a balance of powers doesn't mean absolute power for judges, either. And there's no guarantee that a nation's highest court will protect democratic rights. Take America, where the Supreme Court has in recent years confused democracy with plutocracy - erasing the limits on the power of the wealthy to warp elections with cash, and mostly upholding restrictions on voting rights.

Relative to the United States, Israel's method of appointing justices is less politicized and based more on consensus, producing a more centrist court. In the eyes of the right, of course, the court is made up of wild-eyed radicals, and Shaked also wants to change the selection method. In fact, the court gets more blame - or credit - for standing up to the government and Knesset than it deserves. The smattering of decisions against land theft and other abuses in the occupied territories, for instance, deflect attention from the judicial stamp of legitimacy it has given for basic elements of occupation policy since 1967.

The court's decisions, last year and this year, to throw out draconian anti-refugee legislation are therefore exceptional. It could be that in this case the justices had no countervailing concerns of interfering in military decisions or in foreign policy toward the "near abroad" of the West Bank. They had only to acknowledge the egregious violation of the Basic Law's protections.

Shaked would have grounds to claim that she is aiming at a reasonable balance of powers if her bill set a high bar for overriding the court - not a just a majority in the Knesset, but a wide consensus. Instead, her bill requires only that a majority of the 120 Knesset members be present and vote in favor.

Compare this to the law enacted earlier this year requiring a referendum to approve an agreement that relinquishes territory now under Israeli law. The Knesset can override the referendum requirement - if 80 members vote to do so. Shaked was an author of that law. Here's a quantified ranking of values: The majority she'd require to relinquish annexed land is much larger than the majority she proposes to remove court protection of civil rights. Land, she is saying, is worth much more than protection against extrajudicial imprisonment.

In the end, the issue is really the Knesset's values, not the court's, because the Knesset really is sovereign. It enacts the Basic Laws. It is a very slow moving constitutional congress. The Knesset of 1992 placed a high enough value on human dignity and freedom to enact a Basic Law limiting its own power. Shaked hopes that the Knesset of 2014 places greater value on making sure that refugees do not become part of Israeli society. Refugees, she says in explaining her bill, "affect the character of Israeli society." Translation: They're not Jews.

So the argument is also about what it means for Israel to be a Jewish state. For Shaked, as for many on the right, it means that the state is a home for Jews, on all of the Jewish homeland. As framed in Israel’s original Basic Law: Human Dignity and Freedom, a Jewish state must act according to Jewish values that can best be expressed by a sovereign state: The dignity and equality of every human being created in God's image. The attack on the law, and on strangers who have come here for refuge, is truly an assault on the democratic and Jewish character of the state.  

Gershom Gorenberg is the author of The Unmaking of Israel and The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977. Follow him on Twitter: @GershomG

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