Opinion |

Netanyahu Wants the Power to Abuse Human Rights Unhindered

The Netanyahu government's plan to undermine Israel's judicial system is bad enough. But opposition leader Yair Lapid's idea to hold a referendum on this revolution is even worse. It could legitimize, irrevocably, the violation of human rights

Aeyal Gross
Aeyal Gross
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Activists protest the occupation of the Palestinian territories in Tel Aviv, this month.
Activists protest the occupation of the Palestinian territories in Tel Aviv, this month.Credit: Ofer Vaknin
Aeyal Gross
Aeyal Gross

The judicial revolution being pushed by the Netanyahu government (under the misleading title of “judicial reform”) has garnered much debate – but a large portion of it seems to have turned to technicalities, and has become a discussion about the procedures and institutions involved.

Critics of the plan point to how the executive branch seeks to use it to consolidate power. The government already has de facto control over the legislative branch. Now, as it is being rightly argued, it will also control the judicial branch, both by appointing judges and limiting judicial oversight and by allowing lawmakers to override the Supreme Court’s rulings.

On top of that, the government will be seizing control over legal advising, which will be provided by its own biased lawyers, and lose its binding status. Some of the arguments focus on the move’s haste and one-sidedness in its execution.

In response, defenders of this so-called reform argue that they “only” seek to restore the constitutional order that prevailed in Israel before the “constitutional revolution” of 1992. In their view, this was epitomized by the legislation of the Basic Law on Human Dignity and Liberty, which did not have broad support or recognition of its constitutional status, and that law’s expansive and activist interpretation by the Supreme Court headed by Aharon Barak.

Many articles have sought to dispute these claims. They note that even though fewer Knesset members were present at the vote on the Basic Law on Human Dignity and Liberty, it was legislated in a lengthy process, and with broad agreement and numerous compromises on the part of its sponsors.

But even though these articles serve an important role in this discussion, this detail should not be the sole, or even primary, response to the argument of Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin and MK Simcha Rothman. That is because there is something in this discussion that presents a symmetry between a law that was meant to expand the protection of human rights and a plan intended to reduce it.

Even if we were to agree, for the sake of discussion, that the promotion of human rights in Israeli constitutional law in 1992 was not accomplished through an ideal process, that still would not justify a move intended to eliminate the protection of human rights.

It is clear that these moves, which are designed to harm the court’s independence and its ability to exert judicial oversight, were designed to enable the government to violate human rights unhindered. It is no coincidence that among the examples of “unacceptable” judicial interference cited by Levin are the High Court ruling against incarcerating asylum seekers without trial, and its disqualification of the law intended to authorize settlement outposts built without a permit on private Palestinian land.

These laws are likely candidates for the first ones put back on the table when the override clause is activated, which also fits in with the coalition’s policies on West Bank settlements and asylum seekers. The arguments presented by advocates of the “reform” – who maintain that this move is just as legitimate as the one that passed the 1992 Basic Law – are totally hollow in regard to human rights.

Focusing criticism on the legislative process of the amendments proposed by this government should be done with the utmost caution, as these plans endanger the separation of powers and the ability to safeguard human rights – a situation that no procedure or majority could legitimize.

This makes opposition leader Yair Lapid’s proposal to hold a referendum on the proposed amendments is cause for concern. Ostensibly, a referendum sounds like a proper democratic tool, but as anyone who has taken a close look at the Brexit referendum knows, it can also be fertile ground for populism and fake news. It leads to a binary decision, after which there is no public legitimacy for changing it – even when it is clear that it was mistaken and has caused great damage.

The referendum that Lapid is proposing is even worse than the Brexit case, since no vote by the populace could legitimately approve harming democracy in a way that would no longer guarantee protection for individual and minority rights.

As Yuval Erez wrote in Haaretz's Hebrew edition, the government and Knesset may choose to overturn a Supreme Court ruling by means other than the override clause. They can pass specifically tailored Basic Laws, such as the Basic Law on Entry, Immigration and Status in Israel that Rothman wants to advance.

Such use of the law is a manifestation of one of Israel's constitutional paradoxes: According to the judiciary, every Basic Law has constitutional status, but a Basic Law can essentially be legislated with any type of majority and without a special process. Levin’s plan includes ensuring that judicial oversight of an “unconstitutional constitutional amendment” can no longer be applied to a Basic Law – but this is a vital tool for solving this paradox.

When advocates of the new legislation claim that all they really want is to take the system back to the way it worked before 1992, and ask whether Israel was still a democracy before the “constitutional revolution,” we must remember that democracy is not a static condition, but an ideal that always leaves room for improvement. The occupation undermines democracy in Israel, as it entails a rule over millions of disenfranchised Palestinians. The legislation that is currently being proposed would exacerbate the extant, profound damage to democracy here, rather than strengthen that democracy.

This twisted use of constitutional law renders the concept of "constitutionalism” meaningless. Instead of using the constitution to protect individual and minority rights from the will of the majority, it does the opposite – it enables the majority to trample these rights. It is not legitimate by any majority, by any process or by any referendum.

Aeyal Gross is a professor of constitutional and international law at Tel Aviv University

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