On Sunday the Ministerial Committee for Legislation will debate a proposal by MK Ayelet Shaked to add an “overcoming the limitations” clause to the Basic Law on Human Dignity and Freedom, which would allow the Knesset to re-legislate a law that was struck down by the High Court of Justice as unconstitutional, on condition that it stay in effect only up to four years, and pass with at least 61 votes.
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Shaked justifies the bill – whose aim is to help the government formulate a new law that would allow asylum seekers to be imprisoned without legal proceedings and for an unlimited time – by saying that it gives “the last word” to the elected officials in cases of an “ethical dispute” between them and the court.
But her words reflect a fundamental misunderstanding of the role of the different branches of government in a democracy. The role of the court is, among other things, to prevent the abuse of human rights by the legislative and executive branches. When at issue is a law that seriously undermines human rights, like the amendment to the Prevention of Infiltration Law that was struck down by the High Court twice, we aren’t talking about an “ethical dispute” involving a choice between two legitimate options, but substantial harm to the principles of democracy.
Particularly because the court is not an elected body, it can rise above the populism that sometimes typifies political discourse and it can make decisions based on moral principles and international law, rather than with an eye toward the next primaries. In a democratic state, this is one reason for the High Court’s existence.
Shaked and others promoting the addition of the overcoming the limitations clause are relaying on a “precedent” set by the Knesset when it added a similar clause to the Basic Law on Freedom of Occupation in 1994 to resolve a coalition crisis. The purpose of that clause was to allow the legislating of a bill that would force meat importers to import only kosher meat.
But to rely on that instance is baseless. There is no comparison between the possibility – problematic as it may be – of doing limited harm to one’s ability to do business in an area that doesn’t touch at the heart of human rights, and the current proposal. The overcoming the limitations clause inserted in 1994 aimed to prevent the invalidation of a potential law, while in this case the clause’s purpose is to circumvent a High Court ruling that was issued twice.
The current proposal is liable to deal a fatal blow to the entire body of human rights protected by the Basic Law on Human Dignity and Freedom, including the rights to life, freedom, and dignity that the court said were violated by the amendment to the Prevention of Infiltration Law. Legislating the bill Shaked is proposing would be a black mark for Israel’s human rights. The ministerial committee must categorically reject it.