The danger of allowing the court into the political arena is, first and foremost, to the court itself. This country’s greatest legal minds have always understood this.
By Gideon Sa’ar, ISRAEL HAYOM
This writer believes wholeheartedly that any democracy worthy of its name must have an independent judiciary. Moreover: Some legislation passed in the Knesset, on rare and extraordinary occasions, should be subject to judicial scrutiny. In the country’s 72 years, the executive and legislative branches have respected the judicial branch and upheld its standing, even amid growing criticism from the people and their elected representatives. There is one danger from which no one can protect the judiciary from – itself.
It’s enough to note the Supreme Court’s rulings just this past week, spanning Memorial Day and Independence Day: Abolishing the Deposit Law for illegal migrants and infiltrators; abolishing the use of the Shin Bet’s cellular location technology for coronavirus patients; a temporary injunction preventing a 3-month extension of acting State Attorney Dan Eldad’s tenure; ruling that hospitals cannot prevent people from bringing their own food into their premises during the Passover holiday.
This can only be described as the intoxication of power. Where are the days of Supreme Court justices acknowledging the need for self-restraint when intervening in the decisions of other authorities? The illegal migrant issue is a clear example of over-intervention. The High Court intervened on four separate occasions to change four laws presented to the Knesset by various interior ministers.
The High Court has methodically annulled all the effective measures proposed by the Knesset, at the behest of the government, to cope with this problematic phenomenon. Prison terms for infiltrators were “shrunk down” from three years to three months (!), and the maximum time they could be held at the Holot detention center was also drastically reduced. And now, the law obligating Israeli employers to deduct 20% of the wages of illegal migrants they employ and deposit them in a designated deposit fund where the money is kept until the worker leaves Israel – is also abolished.
In this fashion, the judicial branch has weakened every significant tool meant to encourage and incentivize illegal migrants to leave Israel. The migrants understood the message loud and clear and their emigration from Israel has decreased considerably. This has mostly hurt the interests of the state and its citizens. As it pertains to the rulings, it’s easy to see that in canceling the policies of multiple elected governments, the judges have sought to apply their own worldview. But no one elected these judges to implement their subjective worldview and replace those who were elected to determine policy.
The danger of allowing the court into the political arena is, first and foremost, to the court itself. This country’s greatest legal minds have always understood this.
Moshe Landau, who was Supreme Court president in the early 1980s, cautioned nearly 20 years after his tenure: “Plato proposed entrusting governmental power to an echelon of scholars who had been specially groomed for that role. Sometimes I think that most of our Supreme Court judges consider themselves to be those very empowered scholars … therefore I’d like to see more restraint.”
The Supreme Court isn’t solely responsible for the current situation. For decades the Knesset has avoided passing bills such as the Basic Law: Legislation, which seeks to determine the boundaries of the court’s legislative jurisdiction. The political system has also sidestepped implementing reforms to the judiciary in any significant way.
Basic Law: Legislation, which includes an overriding clause – that would enable the Knesset, with a small majority of only 65 Knesset members, to reinstate laws that have been deemed unconstitutional by the High Court – is the order of the day.
Continuing to duck such vital legislation will be a tragedy for generations and will irreparably damage the public’s faith in the judiciary and elected offices alike. Despite the different approaches and worldviews in the Knesset, I believe it’s possible to rally broad and historical agreement around such balanced legislation.
The sooner the better.
Israeli Supreme Court today broadcast live for ONLY the 3rd time in its history.
It appeared to signal that it will not interfere in Bibi being Prime Minister again if 61 MKs vote for him.
It is possible that some of the coalition agreements that basically change or violate the Basic Law on Governance may not fare the same way. The court is meeting again tomorrow and we will find out.
Saar is correct! Israel badly needs a constitution which clearly defines the speration of powers between the branches of government and the courts. Then laws could ONLY be partially or completely thrown out ONLY if they violate the constitution and rights granted under it.
Right now the Court Claims the Basic Laws are a working constitution but are they? They are so easily changed. Does the court over ride them? The court is far too judicially active and then up writing laws and over turning laws based on their preferences and not law as written by the democratically elected Knesset.