The cancellation of the deal with the UN High Commissioner for Refugees and the suspension by the High Court of Justice of the deportation plan have left the government with no possibility of expelling or detaining asylum seekers, barring a new court ruling. In addition to examining other bad options, such as deportation to Uganda or another state willing to cooperate with this wickedness, Habayit Hayehudi cabinet members are proposing legislation that would make it possible to enact laws previously struck down by the High Court for their egregious infringement of human rights. That would enable the passage of a law permitting indefinite incarceration of asylum seekers, contrary to the High Court’s position.
The fact that Prime Minister Benjamin Netanyahu has repeatedly declared that he would not lend a hand to anti-court legislation is irrelevant, since it’s clear that there is no connection between his words and his deeds. But what about someone who in recent years has reiterated again and again a promise to do everything possible to protect the courts and Israeli democracy? In his campaign videos, Finance Minister and Kulanu party chairman Moshe Kahlon pointed to Menachem Begin as a model for emulation. And Kahlon insisted that his agreement with the governing coalition gives him veto rights so that he could protect the Supreme Court. Kulanu whip MK Roy Folkman styles himself and Kulanu as the keepers of the inviolability of the Supreme Court and of upholding respect for it, in keeping with right-wing liberal traditions.
Support by Kahlon and Kulanu for an exception clause would constitute a betrayal of their ostensible core values. This is true whether the legislation is sweeping or specific, enacted as an amendment to the Basic Law on Human Dignity and Liberty or using a different legal trick. It would serve as a precedent that would deal a death blow to constitutional law in Israel. There will no longer be true protection of individual liberty or of the rights of disadvantaged and protected groups, whether women, minorities or the poor. We would have an unchecked tyranny of the majority. In the future this clause could be applied to any issue: the draft, state and religion, budgets, defense, treatment of minorities and more.
With the exception of Canada, where the much-criticized compromise was in favor of passing a human rights charter in a federal state, no other constitution in the world has such a big gap in the fence.
The proposed clause will make High Court rulings nonbinding recommendations, denying the judiciary the means to mitigate the inherent shortcomings of tyranny of the masses or to block anti-human-rights laws, for example. Kahlon and his colleagues must stop the unbridled ultranationalist assault on the courts and prove that they are worthy heirs to Begin’s legacy.