Michael Tweyman

Proposed High Court basic law is critical for strengthening Israeli democracy

Last week in particular was a low point for Israel’s High Court.  First, the Court ruled that Israel had no authority to revoke the residency permits of Hamas members in Jerusalem.  You read that right – a government could not, under the current law, banish members of a terrorist group from residing in its capital.  But perhaps more significantly, the High Court struck down a law that postponed the draft of Haredim, ruling that this increased inequality and therefore violated Israel’s constitution.

Already, violent clashes have occurred between the Haredim and the police.  The issue of the Haredim and the Army is a constant issue in Israeli society.  But that does not give the court the legitimacy to make laws.  One may complain that the type of democratic system Israel has always gives the Haredim the balance of power, so nothing will change.  One may also, perhaps rightfully, argue that it is time the Haredim serve their country in ways that go beyond prayer.  All of these are legitimate problems; and their solution lies in the people and the government, not the High Court.  Unelected judges should not be deciding extremely sensitive social issues that are the domain of government.

Ministers Shaked and Bennett have finally said “enough is enough”. The two ministers proposed a law with the aim of “completing the constitution”, which apparently “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” among other provisions.

The condemnations from the left came fast and furious.  Of course, Leftist and Jewish-values-underminer-in-chief Tzipi Livni was the first to speak out, stating “It isn’t a constitution they seek, but rather the destruction of democracy and the Supreme Court.”  Like with every decision against her leftist worldview, it seems she believes Israel will clearly implode from within and be gobbled up by the earth if the law passes.  Avi Gabbay made an even more ridiculous argument that the law will “destroy the independence of the judiciary.”  Famed defender of democracy Ahmed Tibi, a man who lends support to those who seek destroy the country in which he is a member of parliament, called the proposed law “dangerous to democracy and the rule of law.”  Even the right-leaning Jerusalem Post described the law as a  “..proposed assault on the court and its 1990s’ “constitutional revolution” 

As I wrote here, Israel has no constitution (and needs one).  Israel’s so-called constitution is a patchwork of Basic Laws.  The Basic Laws that allegedly give the High Court carte blanche to intervene on any issue it wants whenever it wants were passed by a plurality, but not majority, of the Knesset.

The High Court in its current self-anointed role contravenes major principles of democratic theory.  Most importantly, constitutions of countries are not patchwork laws passed by small numbers of parliament members.  Constitutions are foundational documents, enshrining principles fundamental to the citizenry and defining the country.  They require some kind of super-majority to enact and can also require referendums.  Once in place, all laws have to conform with the constitution; but the constitution itself does not need to enshrine blind equality to all citizens. The constitution should reflect basic values common to the vast majority of the citizenry.  In Israel, that means that it has, among many other things, recognize Jewish values as well as the unique compromises that led to the founding of the state.

In Canada, for example, constitutional compromise led to the guarantee of public funding for Catholic schools in Ontario.  Thus, when Jewish and Muslim students tried to challenge the lack of funding for their schools, the likewise liberal and activist Supreme Court of Canada nonetheless refused to intervene on the basis of the guarantees of equality found in the Canadian Charter of Rights and Freedoms.

By using Canada’s system as a guide, I would like to briefly analyze the three areas that the Bennett/Shaked law either covers, or needs to cover, to establish the proper role for the High Court.  If we can all agree that Canada is a liberal democracy, and that Canada has similar rules to those proposed, then it is easy to show that Livni’s arguments are baseless.

1.)  The ability for the Government to Overrule the High Court’s decisions

Shaked is right that other democracies permit the government to override decisions of the court.  In Canada, we have something called the “Notwithstanding Clause“, which reads in part “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 [of the Charter of Rights and Freedoms, a Canadian constitutional document]”.

In other words, as much as Canadians have respect for the Supreme Court, Parliament still has a law that gives it an override.  This “notwithstanding clause” remains in existence and the respect that Canadians have for the highest court is not undermined in the least.

It is true that the “Notwithstanding Clause” is not often used in Canada for fear of political consequences, but that’s in part because the Supreme Court of Canada’s judicial activism is nowhere near that of Israel.  And just like in Canada, politicians in Israel would have to worry about the political consequences of invoking the clause.

In sum, there is nothing anti-democratic about a clause that allows the government to overrule the Supreme Court.  Accountability to the population, which the Court does not have, will always restrain the use of such a clause and ensure it is used appropriately.

2.)  Standing

The issue of standing – or who may bring matters before the court – is a critical component to the role of any Supreme Court.  Standing is important because only those affected by a law should, in general, be able to petition the court.  If that is not the case, organizations funded by special interest groups and foreign funds can use the court to achieve policy objectives that circumvent the normal democratic process.  Sound familiar?  It should.  This goes on all the time in Israel.

In Canada, as in most developed democracies, there are rules about standing.  While there is room in an exceptional case for someone to claim “public interest standing”, basically bringing a matter to court for the good of the public, this should not be a regular occurrence.

Aharon Barak (when he was apparently given the divine right of judgment from above) famously declared in 1995 that “everything is justiciable”.  (For a good background on this topic, see Aharon Barak’s Revolution by Hillel Neuer).  If everything is justiciable, then nothing is in the government’s exclusive jurisdiction.  The rule of law is completely undermined and replaced with the whims of an elitist, unelected court, operating on its own vague and over-broad principles.  THAT is far more of a threat to democracy that a law delineating standing rules.

3)  The Freedom of the Executive to Act in Matters of foreign affairs and national security

While it is not clear that the new law addresses the above issue, it should.

In Canada, even an activist Supreme Court’s restrains itself in matters of foreign affairs and national security.  Take for example the case of Ahmed Khadr, an al-Qaeda terrorist who confessed to killing a US medic during a fight in Afghanistan.  Khadr alleged his Canadian constitutional rights were violated by the presence of CSIS agents during his interrogation in Guantanamo Bay.

Even though the Supreme Court found that Khadr’s rights had been infringed, it still issued nothing more than a declaration to that effect.  The Court delineated its limited role as follows, “As discussed, the conduct of foreign affairs lies with the executive branch of government. The courts, however, are charged with adjudicating the claims of individuals who claim that their Charter rights have been or will be violated by the exercise of the government’s discretionary powers.”  In addition, this was a rare case of a court foraying into the government’s areas of exclusive jurisdiction.

In Israel, the High Court wades into security decisions made by the Government all the time:  everything from the route of the security barrier, to the appropriateness of targeted killings, to home demolitions, to the decision last week regarding Hamas members’ residency.  The High Court not only ties the government’s hands, but acts as a shadow government in many matters of security, where organizations like Adalah run to the court to complain.

Enough is enough.  The court should intervene on security matters when and if there is a gross breach of international law or democratic norms, and even then issue decisions as minimally intrusive as necessary.  The people of Israel elected Benjamin Netanyahu to keep them safe, not Miriam Naor and Salim Joubran.

Thus, contrary to Livni and co’s arguments, the proposed law strengthens democracy.  And in any case, don’t let Tzipi Livni fool you: she isn’t against this law because she values democracy.  She is against this law because she values leftist principles and does not care through what means they are imposed.  In many liberal democracies, the left today looks to the court to impose on the populace important policies the left favours.  Leftists like Livni know that the court is staffed by judges that share their ideological worldviews.  And if you can’t get the public to accept your left-wing policies, then the courts are just another means to an end.

If Bennett and Shaked let Livni monoplize and distort the democracy argument, they have already lost the rhetorical war.  Livni’s arguments, and those of the left-wing Israeli press, need to be debunked by real world examples like those given above.  Far from an “assault” on the court, this type of law is a strengthening of the court by legitimizing its decisions from the perspective of democratic theory; far from destroying the rule of law, this law strengthens the rule of law by giving the court’s jurisdiction more predictability and structure.

This law is the most important proposed law affecting the justice system in the country’s history.  Ministers Shaked and Bennett, if you are reading this article, make sure the law passes.  This law will be your legacy and change forever, for the better, the role of the High Court in Israel.  Short of an actual constitution, this law is the next best thing.

About the Author
Michael Tweyman is a politically conservative Toronto lawyer whose writing has appeared in the Canadian Jewish News. Michael has no formal affiliation with any Israeli political party or movement.