Editorial

How to Destroy the High Court

The price Israel will pay for Netanyahu’s weakness will involve the demolition of the protective constitutional wall afforded by the High Court

Israeli Prime Minister Benjamin Netanyahu sits next to Israeli Education Minister Naftali Bennett during a session of the plenum of the Knesset, in Jerusalem, March 12, 2018
\ RONEN ZVULUN/ REUTERS

The High Court of Justice is a significant piece on Benjamin Netanyahu’s political chessboard. Its authority to overrule laws passed by the Knesset enables the prime minister to recklessly promote an extremist right-wing agenda on the assumption that the court will act as the responsible adult and block it.

To really understand Israel and the Knesset - subscribe to Haaretz

This way he can assuage protests by residents of south Tel Aviv, float populist promises to bypass High Court resolutions and indefinitely lock up asylum seekers who refuse to leave (using various proposed “anti-infiltration” laws), or support legislation allowing retroactive expropriation of private Palestinian land just because Israel wishes to do so. What does Netanyahu care? He profits even when the High Court strikes down these laws, which allows him to channel public anger and resentment toward the court.

The new amendment proposed by Habayit Hayehudi would add to the Basic Law on Human Dignity and Liberty the clause allowing a vote to “supersede” the court. This will authorize the Knesset to relegislate any law struck down by the High Court with a 61-vote majority. The “overcoming” of human dignity means abrogating all constitutionally sanctioned basic rights in Israel — those explicitly granted in the Basic Law (the rights to dignity, life, movement and property ownership) and those that are not (such as the right to equality and freedom of expression.)

The right wing’s actions are blunt and shameless. The wish to “supersede” the Human Dignity and Liberty Basic Law is simply a desire to allow the Knesset to legislate laws that violate human dignity. Such a move would leave Israel’s democracy exposed to government tyranny, with Netanyahu free of any checks and restraints that qualify his own populism. It’s for good reason that Habayit Hayehudi believes Netanyahu wants to defer voting on this issue. After he yielded to Supreme Court President Esther Hayut’s request to postpone the vote by a week, Habayit Hayehudi gave Netanyahu an ultimatum: If the vote at the Ministerial Committee for Legislation is not held within 10 days, the party will not vote with the coalition on any matter. The risk is that this time, the High Court may not be able to save Israel from itself. As reported in Haaretz on Tuesday, Attorney General Avichai Mendelblit explained that the accepted version stipulates that the High Court will not be allowed to strike down the clause permitting the superseding of the court for constitutional reasons.

The price Israel will pay for Netanyahu’s weakness — his fears of unpopularity preventing him from defending even the few values he may still believe in — will involve the demolition of the protective constitutional wall afforded by the High Court, which, in the absence of a constitution, is the sole defender of human rights and the principles of justice against the arbitrariness of a government. It’s not clear how willing Mendelblit is to lend a hand to this. For now, ministers Moshe Kahlon and Yuval Steinitz seem to oppose this legislation. Any cabinet member who still harbors a shred of concern for the future of Israeli democracy must come to its defense.

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