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May 8, 2018 8:54 am

Why We Must Restrain Israel’s Supreme Court

avatar by Naomi Linder Kahn

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Israel’s Supreme Court. Photo: Wikimedia Commons.

Democracy is based on checks and balances between three branches of government: executive, legislative, and judicial. For many years, however, the delicate balance between the legislative and judicial branches of Israel’s democracy has been disrupted.

Beginning with Chief Justice Aharon Barak’s revolutionary judicial activism, Israel’s Supreme Court has assigned itself powers that its counterparts in other democracies never dreamed of, such as:

  • The members of the Supreme Court have the power to veto nominees to the Court itself, making them a self-appointed elite, rather than an appointed body that represents the range of views and backgrounds that make up Israeli society.
  • The Supreme Court unilaterally granted universal standing before the Court, meaning that there is no issue, and no individual or group, that is beyond the Court’s jurisdiction.
  • Whereas supreme courts in other democratic countries are bound by legal precedent and principles, the Israeli Supreme Court allows decisions to be based upon amorphous, subjective concepts such as “foundational principles,” which have never been clearly defined or delimited; “the opinion of the enlightened public,” a wildly subjective category that opens the door to politicization; and “instrumental interpretation,” essentially drawing the bullseye around the arrow, as it were.
  • The Supreme Court unilaterally declared a controversial “Basic Law” — passed in the dead of night in May 1992 by a margin of only 9 votes (32 MKs voted in favor, while 23 opposed) — to be the equivalent of a constitution. Ever since, the Court has used this pseudo-constitution as the justification for striking down laws passed by much larger Knesset majorities (some examples: The Bi-Annual National Budget Law, the Anti-BDS Law’s main section, the Tal Law for Conscription of Yeshiva Students, the Tax on 3rd Apartments, and many more).

Recently, the Supreme Court struck down the Illegal Infiltration Law, causing a public furor and thrusting the more basic question of the Supreme Court’s power into the spotlight. The public began to voice its rising frustration and many politicians now feel that the time has come to restore the balance between the branches of government through the legislation of an Override Clause that, in our view, would allow the public to regain its voice.

The Override Clause has come to the forefront of Israel’s agenda in a pre-election climate. Politicians have already begun maneuvering and refining their political positions, cataloguing and publicizing their achievements, and redefining and restating their agendas ahead of elections that appear to be on the not-too-distant horizon. The Override Clause should be the litmus test for parties and politicians to prove their credentials as legislators, Zionists, and defenders of democracy, the flagship issue of Zionist vision and democratic government that Netanyahu and other politicians present to centrist and right-of-center voters in the coming elections.

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The Override Clause is a classic case of “Power to the People”: Either our democratically-elected representatives or the Supreme Court — a self-elected body that has granted itself powers unequaled in American, British, or other democracies — are in charge of national public policy. This is not a question of left-wing versus right-wing. This is not some new, radical power grab. The Override Clause will restore the balance between the branches of our government and protect our democracy. Every citizen of Israel, indeed citizens of democracies all over the world, should support this important legislation.

Naomi Linder Kahn is Director of the International Division of Regavim, a research-based think tank and lobbying group dedicated to preserving Israel’s resources and sovereignty.

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