On Sunday, the Ministerial Committee for Legislation is slated to approve a bill that would allow the Knesset to reinstate legislation overturned by the High Court of Justice. The court's chief justice and a sizable collection of jurists, legislators, analysts and pundits have been waging a world war against this bill.
That’s bizarre, because the justices and their supporters know that on issues of values, ideology, foreign policy and security, the so-called override law – if it’s ever enacted – won’t affect the High Court of Justice, won’t harm it one bit.
After all, even with the sword of the override bill supposedly at their necks, the fearless justices accepted a petition by Israel-loving organizations like Adalah – the Legal Center for Arab Minority Rights in Israel and Al Mezan (a Gazan organization that works against Israel internationally, and now, thanks to the court’s generosity, within Israel as well), and began discussing their demand to bar the Israel Defense Forces from using snipers to disperse demonstrations – or in other words, to order the IDF not to shoot at Hamas operatives trying to break through the security fence along the Gaza-Israel border on their way to liberating Al-Quds and implementing a “right of return” for descendants of Palestinian refugees.
Will the override bill prevent the judicial branch from intervening in this critical issue, the tactics used to implement defense policy? Categorically, no, it won’t.
There’s a wealth of other examples. In May 1999, the government decided to close Orient House, home to the Palestinian government’s offices in Jerusalem. Israeli friends of Faisal Husseini and his ilk petitioned the High Court, and Justice Dalia Dorner issued an injunction forbidding the planned closure.
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Nor is this judicial activism unique to decisions – including future ones, like the one Dorner forbade – in the realm of foreign and defense policy. The High Court has also ruled on who isn’t worthy to receive the Israel Prize, whether an apology by the IDF’s chief rabbi is acceptable, who may – or may not – light a torch on Independence Day, why no woman was appointed to an inquiry committee investigating the botched raid on a Turkish-sponsored flotilla to Gaza, and which day the Lag Ba’omer vacation should fall on when the holiday itself falls on a Sunday.
Some years ago, the court discussed rocket-proofing schools near the Gaza border. In a particularly judicious ruling, this super-government ordered the government underneath it to fortify all schools in the designated area by the beginning of the next school year – about four months from the day on which this ruling/order was issued. The state argued that even the engineering plans couldn’t be completed by that deadline. The project involved soliciting bids, allocating funding and, above all, the considerable amount of time needed to simultaneously build protected spaces in dozens of kindergartens and schools, which the state estimated would take many months. The court rejected these arguments out of hand.
Which provision in the override bill would prevent the court from ordering the state to pay compensation to Mustafa Dirani, one of the men who kidnapped air force navigator Ron Arad? The ruling awarding him compensation, authored by Justices Ayala Procaccia and Salim Joubran, was admittedly overturned by an expanded panel of the court eight years later. But it demonstrates better than a thousand witnesses the delusional realms into which the court allows its rulings to stray.
The override bill is meant to rein in the judicial branch’s excessive eagerness to undermine the independence of the legislative branch, and it is likely to bolster the separation of powers. Nevertheless, its sponsors weren’t able to muster the courage to include a solution to the main problem – an incomparably greater one – that the judicial system has posed, especially since 1992: the High Court’s decision to place itself over the executive branch, all too often with no authority whatsoever. By leaving in place this loophole, which is critical to any government’s ability to govern, the bill’s sponsors have failed.