Israeli Democracy Without the High Court and B'Tselem

Throughout the years of Israel's existence, the relationship between the Knesset and the High Court has been conducted within a framework of mutual respect and recognition from each of these authorities of the other's role and importance.

A photo of Dr. Zvi Bar'el.
Zvi Bar'el
A photo of Dr. Zvi Bar'el.
Zvi Bar'el

This is how a democracy should look: If the people's elected representatives pass laws that contradict the country's constitution or its Basic Laws that they themselves legislated, the court has the authority to invalidate them. This is a power that the lawmakers themselves granted the High Court of Justice here, in order to protect citizens - in case the legislature fails to carry out its task properly, and decides to grab more power for itself than the public agreed to grant it.

This defensive "safety belt" is based on an enlightened lawmaker's understanding that he is capable of erring, of aspiring to tyranny or of abusing citizens. Therefore, it is best to have a policeman with a great deal of authority facing him; one who is able to stop him. Now, Justice Minister Yaakov Neeman is proposing to eliminate this safety device.

If the High Court decides to strike down a law because it contravenes a Basic Law, the Knesset can pass precisely the same law again - and this time even the High Court will not be able to save the public from its representatives: This is the main thrust of the law Neeman will soon present to the Knesset.

There is no doubt that the relationship between the legislature and the judiciary requires some adjustment. However, in a country where many Knesset members view the High Court as an enemy, minorities as a fifth column, the left as homegrown terrorists and religion as the basis of patriotism, it is not the legislature that needs strengthening but rather the court, which remains the last refuge of anyone who does not belong to the "mainstream."

Throughout the years of Israel's existence, the relationship between the Knesset and the High Court has been conducted within a framework of mutual respect and recognition from each of these authorities of the other's role and importance. The politicians' dream of a country where the state will be free to act - to quote Yitzhak Rabin - "without the High Court and without B'Tselem (the Israeli Information Center for Human Rights in the Occupied Territories ) stays, for the most part, where it belongs: in their imagination.

The present need to regularize in law the relations between the Knesset and the High Court is not only arising because the Knesset was insulted when it discovered that, despite its political strength, it had the Tal Law revoked; that it is being prevented from doing whatever it wants, wherever it wants, in the territories; or that it is no longer able to determine to whom and when to grant guaranteed income.

The legislature, or its busy factotum Neeman, is not only asking to maintain its status - it is aiming for a lot more. The proposed law demands total recognition of the Knesset's supremacy, while the opinion of the High Court in trying to strike down an unconstitutional law will be given the status of a mere recommendation.

The new legal restriction that Neeman is proposing - that renewed legislation of a law that the High Court has deemed unconstitutional will require the support of 65 Knesset members; and that the validity of the renewed legislation will be restricted to five years (and then another five, and another five, ad infinitum ) - is not really a brake that will impress the legislating machine when it is barreling down a slope.

When government ministers participate openly in criminal ceremonies - as Transportation Minister Yisrael Katz did when he put up a mezuzah at Machpela House in Hebron - or when legislators and ministers make a mockery of the High Court ruling to eject the trespassers from the illegal Migron outpost, the limitation of special majority is a marginal matter for them, especially when some of the legislators don't even know for what they are voting.

In effect, it is already the case today that members of the Knesset can cancel the power of the High Court to strike down laws that contravene Basic Laws. All they have to do is revoke the Basic Laws. Some of these - like the Basic Law on the Government, and the Basic Law on the Freedom of Occupation - need only 61 Knesset members to change them. Meanwhile, the Basic Law on Human Dignity and Freedom and other Basic Laws have no restrictions whatsoever and can be treated as ordinary laws.

Why then, is the Knesset - and not for the first time - trying specifically to circumvent the High Court but not to circumvent itself by means of revoking Basic Laws? It would seem that here lies the core of the right-wing constitutional revolution - the High Court will exist and the Basic Laws will continue to exist, on condition that the High Court and the Basic Laws be locked up in two separate cells.

The court will not be able to touch illegitimate laws, and the Basic Laws will continue to wear the guise of legitimacy as though they really were invulnerable. This is a perfectly legal masked ball, that will finally realize the nightmarish dream of which the slogan is "Without the High Court and without B'Tselem." Remember, they did warn us we would come to miss former Justice Minister Daniel Friedmann.



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