Defenders of the High Court are Defending Their power, not Democracy

Resistance to the proposed legislation affecting the High Court is about protecting the power of the left and not about protecting democracy.

Ted Belman,

Ted Belman
Ted Belman
PR

I was very upset to read that Kahlon was against legislation limiting the power of the High Court.

But today I read that MK Zahava Gal-on, head of Meretz, met with Netanyahu to discuss the proposed legislation. She wrote on FB:

“Without a meaningful judicial authority, democracy cannot exist” and “There is no one to defend it against the tyranny of the majority, no one who will guard it against itself.”

There is “a chance majority in the Knesset, a random parliamentary majority” that wants to take away power from the judicial branch of the government, and inflict “the greatest possible damage on — first of all — human rights and also on Israel’s standing in the world.”

She is wrong on all counts. The role of the court is not to defend “human rights nor Israel’s standing in the world”. Its role is to apply the laws passed by the Knesset. It also has the role, as in most democracies, to declare laws unconstitutional and therefore not valid. All constitutional democracies provide for this. But Israel doesn’t have a constitution. To get around this problem, Israel passes laws which it calls Basic Laws to approximate a constitution on certain issues.

Wikipedia describes them this way:

These laws deal with the formation and role of the principal state’s institutions, and the relations between the state’s authorities. Some of them also protect civil rights. While these laws were originally meant to be draft chapters of a future Israeli constitution, they are already used on a daily basis by the courts as a formal constitution. Israel currently functions according to an uncodified constitution consisting of both material constitutional law, based upon cases and precedents, common law, and the provisions of these formal statutes. As of today, the Basic Laws do not cover all constitutional issues, and there is no deadline set to the completion of the process of merging them into one comprehensive constitution. There is no clear rule determining the precedence of Basic Rules over regular legislation, and in many cases this issue is left to the interpretation of the judicial system.

The most important of these laws is below:

Basic Law: Human Dignity and Liberty is a Basic Law, intended to protect main human rights in Israel.[1] The view of most Supreme Court judges, is that the enactment of this law and of Basic Law: Freedom of Occupation began the Constitutional Revolution, due to the fact the Knesset gave these two laws super-legal status, giving the courts the authority to disqualify any law contradicting them.

The rights protected by this law are detailed in several clauses:[4]

Section 1: The purpose of this Basic Law is to, in order to establish in a Basic Law tile values of the State of Israel as a Jewish and democratic state.

Section 2: There shall be no violation of the life, body or dignity of any person as such.

Section 3: There shall be no violation of the property of a person.

Section 4: All persons are entitled to protection of their life, body and dignity.

Section 5: There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

However, several cardinal human rights are missing from this document, such as the Right for Equality, Freedom of Speech, Freedom of Religion, Freedom of Protest, and others. These rights were given to the residents of Israel by general principles which existed before this Basic Law. Although these rights were not included in the law, some jurists, such as former President of The Supreme Court of Israel Aharon Barak, see these rights are directly derived from the “right to dignity”.

Guarantee of super-legal status
Due to these rights’ great importance, the Knesset chose to give this law a high legal status, protected by several means.

Section 8 of this law asserts that:

“There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law.” (phrase in italics added in a 1994 amendment to the law).

This clause became known as “limiting paragraph”, as it limits and restricts the Knesset in legislating laws contradicting this law.

Section 12 defends the law from Emergency Regulations, stating that the government cannot change this Basic Law, and thus cannot weaken the rights it protects, by the emergency regulations it can enact. As written: “This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations;”. However, when a state of emergency is in place, regulations can be enacted that restrict these rights: “notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.” Thus, the protection from emergency regulations is not full, and is up to the government and supreme court’s judgement.

A careful reading of these laws will indicate that they protect “human dignity” and “the values of the State of Israel”. Both of these have no legislated definition. So the Court took it upon itself to define them. But they should have been defined by the Knesset, which is still free to do so.

Similarly the Knesset is struggling to enact a law which places Zionism as a value equal to or greater than “democracy”. Once enacted the Court would have to take into account such a value in deciding whether Jews had any rights greater than those of Arabs. The problem is that democracy as desired by the left would negate Zionism. It is for this reason that I argue that Zionism must be the highest value.

We are all familiar with the US Supreme Court and the significance of whether the Judges appointed are conservative or liberal. We know that the make-up of the Court makes a huge difference in the decisions reached. The right in Israel wants a greater say in who is appointed as judges.  At the moment, the Knesset has a limited role in that say.

The Left is desperate to hold on to their power but claim they want to protect democracy. In many instances the Supreme Court has overruled laws passed by the democratically elected Knesset. The proposed laws are intended to remedy the situation and shift power to the people.

It is the job of the elected representatives to make law. The job of the Judges is to interpret it - only.




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