Research studies show that the Israeli public's faith in the High Court of Justice is at an all-time low. But this isn't just the court's fault. In a position paper recently published by the Institute for Zionist Strategies called "Hatza'at Hok Hayesod: Yisrael Medinat Haleum, Hatzorekh Hamishpati" ("Basic Law Proposal: Israel the Nation-State, the Legal Need"), Prof. Aviad Bakshi demonstrates how the court's tendency toward not defending Israel's character as the nation-state of the Jewish people stems from the imbalance in Israel's constitutional infrastructure as it is expressed in its existing Basic Laws.
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The two Basic Laws that gave a constitutional basis to individual human rights were enacted in 1992. Before then, the High Court of Justice found a stimulating way to balance respect for Israel's Jewish character, its practical manifestations, and protecting the rights of the individual. Thus, for example, the High Court determined in 1965: "There can be no doubt on the matter – and so it was clearly indicated in the Declaration of Independence – that Israeli isn't just a sovereign, independent state that supports freedom and is characterized by a government of the people, but also that it was established as a 'Jewish state in the Land of Israel,' since the act of its establishment was, first and foremost, done on the basis of the natural and historic right of the Jewish people to live like every other people in its own right as a sovereign state, and that it was in this act a realization of the aspirations of generations for the redemption of Israel."
Since 1992 we have seen a worrying erosion of the willingness of the court to defend the Jewish character of the state, in various rulings. It can easily be seen how this trend of declining public trust in the court has grown directly in tandem with the legal extremism that emphasizes the rights of the individual and neglects the majority's right to self-determination.
As Prof. Bakshi showed so well in his position paper, the High Court has repeatedly sacrificed the national Jewish interest on the altar of the ever-expanding concept of individual rights. This trend is prominent in a variety of areas, including Jewish settlement, the preservation of Hebrew as the national language and a part of the Hebrew revival. It includes the neutering of Israeli democracy's ability to limit the party activities of political forces who seek to undermine it. The legal-normative distortion goes so far as to disrespect the national Jewish interest and downgrade it to the level of a "public interest" (in place of a "right") like any other, that should be promoted in a measured manner like all the other interests.
"The partial constitutional revolution shattered the historically co-equal status of the values of Israel as Jewish state and Israel as state committed to universal human rights," Bakshi concludes in his paper. "The era of formal constitutional law replaced the era of conventional constitutional jurisprudence, but this constitutional replacement, as it was presented, dropped the steadfast defense of Israel's character as a Jewish state that characterized conventional jurisprudence.
"Israel thus underwent a constitutional revolution not just in terms of the jurisdictional authority of the High Court to annul laws, but also a revolution in terms of its normative roadmap. Israel went from being a state with a constitutional jurisprudence that expressed both the values of human rights and a Jewish state as one, to a state with constitutional jurisprudence that expressed the values of human rights without expressing the values of a Jewish state."
There is room to claim that the "constitutional revolution" of the High Court of Justice was a underhanded takeover by a self-appointed bureaucratic legal elite. But when it comes to the weakening and abandonment of the Jewish identity of the state, the legislative body should not be absolved of responsibility. On the one hand, the Knesset enacted two Basic Laws that constitute a strong legal basis for the protection of individuals' rights. On the other hand, the Knesset has yet to pass a critically needed Basic Law that would restore the balance by proclaiming "Israel, the nation state of the Jewish people."
The Knesset must work to change this situation, since the two pillars of the Jewish democratic idea, the public reputation of the court and the state's Jewish character, are at stake.
The writer is an attorney and co-founder and president of the Institute for Zionist Strategies.