Israel's Proposed Law to Wipe Out the Rule of Law

The bill to limit who can petition the High Court is a new and original blow against democracy in Israel

Israel's Supreme Court.
israel's Supreme Court. Gil Yohanan

The Ministerial Committee for Legislation will discuss on Sunday an amendment to the Basic Law on the Judiciary, “restricting the right of standing.” According to the bill, the court will not allow a person, organization or public authority to petition it if the interest that has been harmed or might be harmed and is at the heart of the petition does not personally harm them, or at least some of their members, or an interest for which they are responsible.

The importance of this bill cannot be overstated. Even though it will be just another brick in the anti-democratic building that the Knesset has been working on in recent years, it constitutes a new and original blow against democracy in Israel.

The purpose of the law is not just to prevent Israeli human rights groups from petitioning the court in the name of Palestinians and preventing Knesset members from petitioning the High Court of Justice against laws on matters that do not directly touch them. The purpose of the law is to wipe out the rule of law in Israel.

UPDATE: In the face of opposition from Finance Minister Moshe Kahlon, the Ministerial Committee for Legislation is expected to defer consideration by three weeks of a bill on its agenda for Sunday that in practice would prevent Israeli human rights groups from petitioning the High Court of Justice on behalf of Palestinian citizens. 

That is because from the moment that only “a person directly harmed” can petition the High Court, we, the citizens of this country, will be deprived of the most effective tool against government lawbreaking. Not for nothing did the explanatory remarks on the bill cite the example of the High Court ruling on the natural gas plan. Many petitions over the years, petitions that have molded constitutional and administrative law in Israel, were by a “public petitioner,” arguing that a state authority had broken the law or that the Knesset had passed a law that was unconstitutional. In many such cases it is not a specific person that has been harmed, but rather the rule of law and the public interest.

Let’s assume that the attorney general closes a major corruption case based on “lack of public interest.” In corruption cases there is no “complainant” who is harmed by the closure of the case. Only a “public petitioner” can petition the High Court against such a decision, and the bill under discussion will take away the High Court’s authority to hear the petition.

The reasons presented in the explanatory remarks on the bill range from embarrassing factual errors to ones that expose a warped view of democracy. (An example of the former is the claim that the undermining of the “right of standing” is a recent development, whereas it dates back to the 1980s to then-Supreme Court President Meir Shamgar, among others.) The claim that separation of powers ostensibly requires an end to such petitions stems from a world view that fails to grasp that separation of powers actually means striking a balance between the various branches of the government.

License for the government to break the law, without effective supervision by the court, is the opposite of what was intended by the principle of the separation of powers.

It is to be hoped that the government will come to its senses and stop this bill, which could seriously sabotage the rule of law in Israel and protection of human rights.

The above article is Haaretz's lead editorial, as published in the Hebrew and English newspapers in Israel.