When the Knesset convenes next week for its winter session, it will have the opportunity to address one of the biggest threats to Israel’s democracy: the Supreme Court’s unchecked power to overrule the government and the Knesset on every issue from draft deferrals for yeshivah students to combatting the problem of illegal migrants to the two-year budget.
The problem has been around since the mid-1990s, when then-Supreme Court President Aharon Barak created a “constitution” out of a few Basic Laws, which he then used to justify his controversial policy of judicial activism. But no one has come up with a practical solution — until now.
A new legislative initiative, proposed by Justice Minister Ayelet Shaked and Education Minister Naftali Bennett, calls for the passage of two new Basic Laws. One, the Jewish state bill, would enshrine Israel as “the national home of the Jewish people.” It was approved in preliminary reading in May.
The second, the Legislation Basic Law, would allow the Knesset to bypass the Supreme Court when the Court disqualifies legislation, as it did recently with a tax that was levied on those who own three apartments. It “will include a paragraph allowing the Knesset to redraft and re-legislate a law after it was struck down by the court, under certain conditions,” Shaked and Bennett said in a statement.
“It will also include clauses related to the drafting of Basic Laws, and the fact that these are not subject to the judiciary review custom in many countries around the world.”
The initiative is not, as Zionist Union MK Tzipi Livni claims, an attempt to destroy “democracy and the Supreme Court.” To the contrary, it is an attempt to save democracy by restoring balance between the legislature and the judiciary.
The situation today is absurd and undemocratic. The government decides or the Knesset legislates, and the opposition — which failed to muster the necessary votes to block the law’s passage — goes to the High Court, an unelected body, to get it overturned.
Even more absurd is that anyone who can pay a few thousand shekels in legal fees can play the game. Recently, the court canceled a 2006 decision by then-Interior Minister Roni Bar-On to revoke the residency status of four Yerushalayim residents who had been elected as members of the Palestinian Authority’s parliament as members of the Hamas list.
Residency status gives Arabs who live in areas of Yerushalayim liberated in the Six-Day War the ability to travel freely throughout Israel and vote in municipal elections.
Among the petitioners was Adalah — The Legal Center for Arab Minority Rights in Israel — which succeeded in using the courts to overrule a duly elected interior minister acting on the recommendations of the security forces.
No one has been more successful in using the courts to bypass democracy than the Reform and the Women of the Wall. While the government has stated that it has no intention to back down on its refusal to allocate a mixed-gender prayer service in the area of the Kosel Plaza, the matter is still pending before the court.
Similarly, when it comes to matters of the yeshivah draft or kashrus supervision or Shabbos commerce, elements hostile to religion use the courts to overrule the Knesset and government, who represent the majority.
The Shaked-Bennett initiative is the most important order of business for the new Knesset session.
For starters, the court is out of touch with the public when it comes to the priority that should be given to Israel as a Jewish state. Shaked, responding to the court’s ruling against the government’s policy on jailing asylum-seekers who refuse deportation, correctly stated that the justices “did not see the preservation of a Jewish majority [in Israel] as a value worth being weighed.”
It also explains recent hints by the High Court that it would disqualify the Jewish state bill if opponents petitioned against it.
Second, the court’s influence has grown to gargantuan proportions. As Amnon Rubinstein, who held several ministerial posts on behalf of the left-wing Meretz party, noted: “A situation has arisen whereby the Supreme Court may convene and decide on every conceivable issue … giving it the reputation of the most activist court in the world … In practice, in many respects the Supreme Court under [then-president Aharon] Barak has become an alternate government.”
The initiative on the table seeks to give Israelis just one government, the one they elected at the ballot box. Its passage will depend on the willingness of all coalition members to support it.
Previously, two coalition parties spoke out against attempts to bypass the courts: Moshe Kachlon’s Kulanu and Avigdor Liberman’s Yisrael Beytenu. But Kachlon, who serves as finance minister, was recently stung by the court’s revocation of his third-apartment tax. And Liberman was quoted by Makor Rishon as stating it’s inconceivable that the courts would intervene so crassly in the functioning of the government.
The justice minister correctly stated that the initiative must be passed “with as large a consensus as possible.” That requires politicians to put their egos aside for the greater good.