Response to Justice Abella

Justice Rosalie Silberman Abella, senior Justice of the Supreme Court of Canada, was born in a DP camp after World War II. The daughter of two Treblinka survivors, she has, during a recent speech in Israel, movingly defended the Israeli Supreme Court from attacks on its independence. She correctly stated that the court is a bulwark of civil liberties in Israel and attempts to curtail its ability to protect human rights amount to attacks on democracy and freedom in the state she and we love.

The latest attacks on the Court arise, as Justice Abella remarked, from its deliberations over the government’s conduct towards asylum seekers and its repeated review of the mass exemptions of Yeshivah students from military service. In addition, a potentially greater threat to the court’s independence has come from the religious right in the government and the Knesset who regard the court as a bastion of secularism, bowing to pluralistic strands of Judaism, and thwarting their efforts to subordinate Israel’s democratic identity in favor of the halacha and strict religious law. The religious right has proposed profound changes in the Basic Law of 1992 law concerning human rights. These changes would allow the Knesset for the first time to override decisions of the Supreme Court in all matters, including those that adversely matters affecting personal and civil rights.

Israel has no Constitution. Instead the Knesset has adopted over time a series of Basic Laws that together function as constitutional requirements which can be overridden only in rare instances, or by a special majority, or in emergencies. In the case of human rights, laws inconsistent with basic freedoms can be enacted only during emergencies and for the period of the emergency. They must also be directly related to the emergency.

The unusual character of the Israeli Supreme Court makes its role in the protection of rights even more important than the role of courts in other countries such as the United States. There are no state courts or other independent entities which would adjudicate key civil rights. Further and even more uniquely, the Israel Supreme Court, like the Indian Supreme Court also deriving from a British model, functions not simply as an appellate court. It also has the jurisdiction to decide human rights issues in the first instance based on petitions from NGO’s who may or may not have been directly injured by a particular allegedly discriminatory or oppressive law. Thus, the Israeli Supreme Court can directly hear issues concerning Kashrut, burial, conversion, gender equality, equality in military service, rights of Arab residents of the Territories, and most recently the rights of migrants. It thus has the capacity to balance democracy and religious law in a fashion that contravenes the wishes of the Haredi members of the Knesset who have been pushing to expand the authority of the Rabbinate. Issues such as mixed gender in the public sphere including transportation, prayer rights at the Western Wall, the personal rights of other Jews, even non-haredi Orthodox, and the expectation that yeshiva students shall serve their country in the army, all have become become flashpoints which have caused the religious right to seek Knesset authority to override decisions of the Israeli Supreme Court.

These critics claim that the Israeli Supreme Court is undemocratic. Yet they fail to acknowledge that courts play a vital role in safeguarding minority rights in a democracy. A true democratic republic does not function on the basis of the latest vote in Parliament, Knesset or Congress. Rather, the long-term stability of democratic society depends on an institution like the courts to insure against momentary passions that trample upon individual liberties.

Further, there is nothing democratic about the their current push to curtail the Supreme Court. The roughly 10 to 12 Haredi Knesset members, of a total of 120 members, exercise a stranglehold over the current coalition that governs Israel. These members, constituting at most 10% of the Knesset, thus have an outsized role in determining how religion – state issues should be resolved even though many of their positions defy general public sentiment in Israel. They are a case of the religious tail wagging the societal dog. Such danger has become even more intense since these groups have been joined in their attacks on the Court by nationalists fighting the court’s intervention on asylum.

Such haredi demands to rein in the Supreme Court go well beyond such issues as asylum seeking. Their override push would undermine the Court’s ability to address any and all the issues of religious pluralism and religious freedom in Israel. They seek to give the current coalition which they dominate essentially bypass the Court where the rights of secular and non-haredi Jews are at issue.

The stakes are high in the debate over the Supreme Court that Justice Abella has so trenchantly analyzed. In fact, the situation is dire. Religious pluralism in Israel could perish if the Court is not protected. We who love Israel should do all we can to defend the Israeli Supreme Court from the attacks on it.