Justice Minister Yaakov Neeman’s draft bill for the Basic Law: Legislation has prompted a lively debate for and against, mainly over the clause that would allow the Knesset to revive a law that the Supreme Court has ruled unconstitutional through a 65-member majority. On Tuesday, the new chief justice of the Supreme Court, Asher Grunis, delivered a sharp message against the bill, and openly criticized the Justice Minister for not consulting with the Court in drafting it. His reprimand was a strong statement for a judge who is considered to be conservative and skeptical of judicial activism.
One intelligent critique of the opposition to the bill was written in Haaretz by Yuval Elbashan, whose views I greatly respect for their nuance and depth, especially on matters of law and social justice. His accusation that the left unleashed a shallow, knee-jerk condemnation of the bill gave me pause, forcing me to reconsider whether my own reaction had been too reflexive:
…Even after four days of debate, the discussion is stuck in the same shallow water, with the same fear-mongering, end-of-days terminology, or, as one opinion maker told a radio interviewer, “If this bad law passes, we can shut down the rule of law.” Such a situation is not just ridiculous, it’s dangerous.
It’s dangerous because this bill is critically important, precisely for those who want to fortify Israeli democracy and the power of the Supreme Court. It’s dangerous because if this law is rejected, the delegitimization of the Supreme Court will continue…
But Elbashan’s subsequent description of the history of judicial activism makes the Court look like a rapacious Promethean figure who crudely grabbed the power of judicial review and has thus earned its punishment. Elbashan agreed that the 65 MKs needed to revive a law should be adjusted, but called this a “secondary discussion.”
I do agree with the logic of regularizing relations between the branches of power, which I also mentioned briefly in my first post – and Elbashan convinced me of the growing urgency to check the increasing public delegitimization of the Court. Zvi Bar’el of Haaretz agrees with that general point too. But Bar’el’s piece exposed the deeper principle of judicial review, and examined the signal that Neeman’s Basic Law would send to citizens and government authorities alike:
[Judicial review is a] defensive “safety belt”… based on an enlightened lawmaker’s understanding that he is capable of erring, of aspiring to tyranny or of abusing citizens. Therefore, it is best to have a policeman with a great deal of authority facing him; one who is able to stop him. Now, Justice Minister Yaakov Neeman is proposing to eliminate this safety device…in a country where many Knesset members view the High Court as an enemy, minorities as a fifth column, the left as homegrown terrorists and religion as the basis of patriotism [and a country that lacks a constitution, I might add – ds], it is not the legislature that needs strengthening but rather the court, which remains the last refuge of anyone who does not belong to the “mainstream.”
Bar’el also raises the troubling context that belies Neeman’s putatively earnest attempt to stabilize the functioning of democracy.
He points out that the Knesset was recently “insulted” when the Tal Law allowing the deferral of Haredi citizens from IDF service was revoked by the Court. And just a few weeks ago, the Court ruled against a deal that would allow the West Bank settlement of Migron (accused of being built on private land) to remain in place. The split-second response of right-wing MKs to the Migron ruling was to produce bills tailored exquisitely to the settlements they want to legalize. For months leading up to the Court ruling, these lawmakers had been practicing the refrain that the Court is trying to rule the country and take over the government. The bill for the “Basic Law: Legislation” miraculously appeared just a few weeks later.
But Bar’el’s strongest argument in my mind is that the Knesset already has the power, de facto, to overturn a Supreme Court ruling that a law contradicts the Basic Laws (the equivalent of ‘unconstitutional’ in Israel) – by voting out the Basic Law. This is the final evidence to me that the Justice Minister’s bill is a ruse. The clause is not actually needed – rather it is intended to slap down the Court and tell society that the legislature alone is the sovereign. It is intended to cement a self-destructive agenda of one government, by permanently weakening our system.
I am heartened that the new chief justice spoke out against the bill. His explicit critique was about the justice minister’s failure to consult with the Court, and the size of the Knesset majority that can overturn a Court ruling of unconstitutionality. But the message that this institution will not be bullied by the Knesset, nor enslaved to the political agenda of this coalition, and that its leader is independent-minded, is at least as important.