Israel's Anti-constitutional Revolution

On Sunday the Ministerial Committee for Legislation is to consider a bill amending the Basic Law on the Judiciary that should by rights be called the “bulldozer bill.” It’s straight and to the point: It denies the High Court of Justice the right to constitutional oversight of laws passed by the Knesset. According to the bill, the court can only “draw the attention” of the Knesset to the fact that a law contradicts a Basic Law, but cannot nullify it.

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The proposers of the amendment want to annul the status of the Basic Laws as supreme and turn them into non-obligatory recommendations. In so doing, like a house of cards, Israel’s entire constitutional structure will collapse: Protection of human rights and the rights of the minority, along with restrictions on the government’s authority. These rights, all of which are now protected by Basic Laws that cannot be contradicted by ordinary laws, will be vulnerable to infringement by an arbitrary majority in the Knesset. Even principles like equality in elections, or the very obligation to hold elections (enshrined in the Basic Law on the Knesset), can be abolished by an ordinary law, and no court in Israel will be able to strike down that law because it contradicts a Basic Law.

The bill will probably not pass. But it expresses a sentiment behind a long list of other legislative initiatives intended to sabotage the strength, independence and powers of the court. These include the attempt to compromise the right to appear before the High Court of Justice, to change the way judges and the Supreme Court president are appointed and to enable the Knesset to enact an “Override Clause,” allowing it to legislate regular laws that contradict Basic Laws, with a special majority and for a limited period of four years — something which would also turn High Court rulings into no more than recommendations.

These bills are all being advanced under the misleading rhetoric of “separation of powers.” According to this idea, the separation of powers is a wall between branches of government and therefore any judicial review of Knesset legislation or cabinet decisions (such as that on the natural gas plan), compromises “separation of powers.”

But the opposite is true. The separation of powers is in fact the principle of “sharing of powers” – so as to prevent one branch of government from amassing too much authority and governing as a tyrant. Hence the critical point in separating the powers is checks and balances: oversight and influence of each branch on the other. In Israel, the role of the judicial branch in safeguarding the rule of law in the executive and the legislative branches is especially crucial in light of the lack of separation between the cabinet and the Knesset, which is controlled by the coalition majority. Any damage to the authority and independence of the Supreme Court is damage to the separation of powers and an attempt to turn the cabinet, which de facto controls the Knesset as well, into an omnipotent power. Such initiatives must not be allowed to pass.

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