+972 Magazine's Stories of the Week

Directly In Your Inbox

Analysis News
Visit our Hebrew site, "Local Call" , in partnership with Just Vision.

Attempts to 'bypass' Israel's High Court will create a 'tyranny of the majority'

The government wants to strip the High Court of Justice of its ability to strike down unconstitutional laws, giving the government carte blanche to violate civil and human rights.

Illustrative photo of the Israeli Supreme Court, where two civil rights groups have said they will appeal the ruling revoking Zayoud’s citizenship. (Hadas Parush/Flash90)

Illustrative photo of the Israeli Supreme Court, where two civil rights groups have said they will appeal the ruling revoking Zayoud’s citizenship. (Hadas Parush/Flash90)

The Israeli government has in recent days advanced legislation to limit or strip the country’s High Court of Justice of its ability to strike down laws it deems unconstitutional. Critics warn that would create dictatorial powers for the executive, put the rights of the country’s Arab population and other minority groups at risk, and set Israel up for a constitutional crisis.

Israel does not have a formal constitution that codifies a balance of power or system of checks and balances, a situation that leaves the court’s authorities extremely vulnerable to being eroded and even revoked by the legislature.

“It’s basically the end of constitutional protection of basic rights in Israel,” explained Alon Harel, professor of law at Hebrew University. “Having a parliamentary system without a judiciary is basically a dictatorship of the executive branch.”

“We as citizens will not have anyone to defend us from the tyranny of the majority,” added attorney Debbie Gild-Hayo, policy advocacy director for the Association for Civil Rights in Israel (ACRI), Israel’s equivalent of the ACLU.

Yousef Jabareen, a legal scholar and member of Knesset who sits on the Constitution, Law and Justice Committee, noted that in the Israeli system the High Court’s role is to defend the rights of minorities and marginalized groups. “There is no real democracy that does not have meaningful judicial review.”

Joint List MK Yousef Jabareen seen in the Knesset. (Hadas Parush/Flash90)

Joint List MK Yousef Jabareen seen in the Knesset. (Hadas Parush/Flash90)

Limiting the High Court’s power has been a stated goal of the Israeli right for years. Last December, Education Minister Naftali Bennett and Justice Minister Ayelet Shaked — both of the far-right Jewish Home party — unveiled a bill that would allow the Knesset to override a High Court decision with a simple majority, bar the High Court from overturn laws on procedural grounds, and increase the threshold required for the Court to strike down a law.

While the current push to limit the court’s power (or in the government’s terms, to bypass it) is a reaction to its repeated intervention in the government’s plans to imprison and deport African asylum seekers in recent years, the root of the issue is actually the occupation and the settlements in the West Bank.

SUBSCRIBE TO +972 MAGAZINE'S WEEKLY NEWSLETTER

SUBMIT

“The trigger in my opinion isn’t the refugees,” Gild-Hayo said. “It’s the issue of Amona and the settlements, which has really frustrated the Jewish Home party.”

In early 2017, Israel dismantled the illegal settlement outpost of Amona after the High Court ruled that the outpost had been built on private Palestinian land. The evacuation of Amona angered the right wing’s base, and, in response, the Knesset passed a law to retroactively legalize West Bank settlements built on stolen, private Palestinian land. The High Court froze the implementation the law, and the attorney general refused to defend it in court, saying it was unconstitutional.

Jewish men pray early in the morning on the hill overlooking Ofra in the Jewish settlement of Amona in the West Bank, December 18, 2016. (Miriam Alster/Flash90)

Jewish men pray early in the morning on the hill overlooking Ofra in the Jewish settlement of Amona in the West Bank, December 18, 2016. (Miriam Alster/Flash90)

While some of the proposals currently being discussed would only weaken and limit the court’s powers, some of the proposals would strip the court of its ability to overturn unconstitutional laws outright. Others would give the Knesset the ability to override the court’s decisions, thereby reinstating legislation that was ruled unconstitutional.

There are some democratic countries, like Canada and the UK, where the legislature can override court rulings. Proponents of the court-limiting proposals in Israel are calling potential legislation that would give the Knesset that kind of power “the British option.”

However, Professor Harel explained, such comparisons overlook important details. “There are many structural and cultural reasons why this can’t work here.”

Both Canada and the UK have bicameral legislatures where the upper house serves as a check on the lower house, and the political culture in both countries is “fundamentally different” from Israel’s, Harel said. Whereas lawmakers in Canada and the U.K. would be embarrassed if their laws were struck down as unconstitutional, lawmakers in Israel would see it as a point of pride.

Asylum seekers and an Israeli activist outside of Saharonim after Israel released 207 asylum seekers imprisoned for refusing deportation. April 15, 2018. (Oren Ziv / Activestills.org)

Asylum seekers and an Israeli activist outside of Saharonim after Israel released 207 asylum seekers imprisoned for refusing deportation. April 15, 2018. (Oren Ziv / Activestills.org)

In Britain and Canada, “there is a democratic culture, there is a relative respect for human rights, the system of checks and balances is very strong.” MK Jabareen said. “This is not the situation in Israel.”

The lack of a democratic culture has only become more acute in recent years. “I’ve been in this work for a long time and there was always resistance to this sort of legislation,” Gild-Hayo added, warning that she thinks there’s a decent chance the bill will pass in today’s political environment. “It looks closer than ever.”

But even if the limitations on the High Court aren’t passed by the Knesset this time around, MK Jabareen stressed, the protections of minority rights will already have been weakened. “Even the current discussion of limiting the powers of the Supreme Court, or eliminating it totally — even this kind of discourse itself is damaging.”

“The justices are influenced by this atmosphere of attacks against the Supreme Court, and that might lead to the weakening of the Supreme Court without the legislation itself,” MK Jabareen concluded. “It’s a win-win situation for Netanyahu.”

Before you go...

A lot of work goes into creating articles like the one you just read. And while we don’t do this for the money, even our model of non-profit, independent journalism has bills to pay.

+972 Magazine is owned by our bloggers and journalists, who are driven by passion and dedication to the causes we cover. But we still need to pay for editing, photography, translation, web design and servers, legal services, and more.

As an independent journalism outlet we aren’t beholden to any outside interests. In order to safeguard that independence voice, we are proud to count you, our readers, as our most important supporters. If each of our readers becomes a supporter of our work, +972 Magazine will remain a strong, independent, and sustainable force helping drive the discourse on Israel/Palestine in the right direction.

Support independent journalism in Israel/Palestine Donate to +972 Magazine today
View article: AAA
Share article
Print article
  • LEAVE A COMMENT

    * Required

    COMMENTS

    1. Tommy Goldberg

      Putin’s Russia, Erdoğan’s Turkey, Orbán’s Hungary, Kaczyński’s Poland. That’s the club Bibi’s Israel wants to join.

      Reply to Comment
    2. Firentis

      The Israeli Supreme Court has the duty to ensure laws passed do not contradict the Basic Laws. It has taken upon itself more and more power over time and now reviews all legislation and rejects any that it doesn’t like effectively on the basis of the political opinions of the judges. The Israeli Supreme Court is now operating as an unelected legislature. It has taken too much power for itself and it will end up getting its power cut down.

      Reply to Comment
    3. Itshak Gordin Halevy

      For freedom and democracy I hope that the Supreme court will be put in its place so that it stops suspending the democratically voted laws by the Knesseth. The judges of the Supreme court choose between themselves and this is not democratic.

      Reply to Comment
      • brightdark

        Don’t the judges also select who their replacements are? Also with most supreme courts you can’t file a new case with them and have it heard. They usually only review and rule on case that work their way up the court ladder.

        Reply to Comment
    4. Ben

      What Firentis and Halevy and those like them are really saying is that they demand a Feiglinist State. And you have to read this and digest it and understand it to understand what I mean:

      A ‘truly’ Jewish democracy: On the ideology of Likud’s Moshe Feiglin
      https://972mag.com/a-truly-jewish-democracy-on-the-ideology-of-likuds-moshe-feiglin/62170/

      And this really gets to the heart of the matter, the struggle, of what one really wants Israel to be. This is the key thing. You’re either “with us or against us” on this one and Firentis and Halevy are here declared enemies of a liberal democracy and there is no compromise here. This is the line in the sand.

      That is, what they really want is the unchecked tyranny of the (Jewish) majority and that Arabs be second class citizens. They want to narrow and weaken judicial review so as to make it meaningless and impotent. So that people like Oren Hazan rule the day.

      Someone like Lewis from Afula is unabashed about this but people like Firentis dress it up as some kind of principled objection to nonexistent judicial legislating. Except of course when the High Court rubber stamps the occupation which it habitually does. What he wants is an unchecked legislature.

      So we hear all this claptrap about Justices being petty political partisans who “like” or don’t “like” legislation. Like Facebook. Because to someone like Firentis, the very idea that one should have bedrock constitutional principles and universal human rights and democratic principles that transcend tribal politics and the narrowest, majority-favoring interpretations of the Basic Laws is an outrageous infringement on the majority.

      This is Feiglinism. They won’t admit it to you or to themselves. But that’s what it is.

      Reply to Comment