Israel: The nation-state of the Supreme Court
The decision of the Supreme Court last Thursday declining to nullify the Basic Law: Israel – The Nation-State of the Jewish People has been received with apparent approval by the law’s supporters. Some key proponents – MK Avi Dichter (the sponsor and central figure of the original and final bills), MK Yariv Levine (an important steward of the final passage), and Justice Minister Gideon Sa’ar – all were quoted by the media as approving the court’s action for their own, respective articulated reasons.
But, in fact, the Supreme Court decision is not only a dangerous precedent, it is a blatant usurpation of power and a menacing black cloud over our democratic system of government. Let me explain why.
The court’s holding, when carefully read, establishes the revolutionary principle that the Knesset, even when sitting as a constituent authority cannot amend the constitution unless the court approves the content of the specific amendment. The court, as is its custom, never clearly articulates its usurpation of power, but it follows directly and inexorably from its decision. This is what it has done.
The court, claiming that it need not decide whether it has the authority to nullify a basic law passed by the Knesset, proceeds to analyze the new basic law to see if it negatively impacts the “two pillars” of the “constitutional structure of the state” (“Jewish and democratic”). Implicit in its conducting the 11-judge hearing in the first place, and more directly in its articulated analysis, the conclusion is evident that any change in the “pillars” would lead the court to nullify the basic law.
In plain terms, the court is communicating to all who will listen that the Knesset cannot amend Israel’s “constitution” if it thereby modifies or impacts what the court has decided are inviolable “pillars” unless the Supreme
Court agrees.
This revolutionary decision literally destroys the Knesset’s free authority to further develop and amend the constitution. It establishes the Supreme Court as the ultimate arbiter of what can be included in the constitution and what cannot – no matter how many Knesset members vote for it. It is not only anti-democratic, it is also logically preposterous.
These two “pillars” are not part of the Bible’s Ten Commandments; they are derived from two basic laws voted by the Knesset (the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation) in which the Knesset included normative statements that Israel as “Jewish and democratic” state. Court President Esther Hayut, speaking for the 10-1 majority, goes on to say, “As such [not having injured the “two pillars”], I do not believe the Knesset has exceeded the narrow limits of its legislative authority when it enacted [the new basic law] .... But, as the Supreme Court has informed us now for over 25 years, the Knesset sits as a constituent authority (constitutional convention) when it enacts basic laws.”
How can the Knesset sitting as a constituent authority exceed “narrow limits” or any limits set by a court? The Knesset is writing the constitution! If the Knesset enacted a constitutional provision declaring Israel a “Jewish and democratic” state, it can enact a later constitutional provision defining that term, amending it or deleting it (none of which were, in fact done in the latest basic law or in any draft leading to its passage).
What possible legitimate basis can there be for such a supra-constitutional court authority? The court itself, of course, is a mere creation of a basic law. Legally, the Knesset can enact a basic law tomorrow eliminating the Supreme Court. Legally, the Knesset can enact a basic law tomorrow modifying the 1992 Basic Law: Human Dignity and Liberty to exclude the principle of substantive “equality” from the basic law. (In fact that principle, which is now a supernatural “pillar,” was never enacted by the Knesset but was “interpreted” into the basic law by the court in direct defiance of the Knesset, which voted specifically to remove the existing word “equality” from the draft law under consideration in 1992.).
CONSISTENT WITH its new fiat, the court went out of its way to claim that the 2018 basic law is consistent with the 1992 basic laws, and to announce that the provisions of the new basic law will be interpreted to comply with the earlier basic law. It is noteworthy that the court gave no such assurances that the interpretation of the earlier basic Laws would conform to the requirements of the Nation-State Basic Law – a later amendment that should prevail in the event of any contradiction or inconsistency.
Under the old regime imposed and implemented by the court until last Thursday, there is a constitution which the Knesset is writing by passing “basic laws” that is a valid and enforced constitution in every way even though the full constitution is not yet completed.
But if the Knesset has the authority and creates provisions of our constitution by passing such basic laws, it can (and does) pass new basic laws extending, amplifying, changing, repealing and amending previous basic laws. This is the fundamental syllogism of all constitutional law.
One hundred thirty years after the completion of the US Constitution, the 18th Amendment was enacted by prescribed process. Fourteen years later, the 21st Amendment was enacted by that same process, repealing the earlier amendment. If the US Supreme Court had the authority now asserted by ours, it could have decided between the amendments to see which it liked better. Or it could have nullified the 18th Amendment or the 21st-whichever it thought fit better with whatever “pillars” it adopted.
The Basic Law: Israel-the Nation State of the Jewish People does not delete or amend either of the 1992 basic laws, nor were any of its drafters interested in doing so. But any fair reading of the Israel Supreme Court decision makes clear that the court has taken for itself the power to accept or reject new basic laws (or any part) based on some unknown authority superior to the authority of constitutional provisions adopted by the Knesset sitting as a constituent authority.
What the Supreme Court has now asserted has never been asserted by any court in a democratic country since democracy first appeared. The court considers its authority to be above that prescribed by the constitution – the very constitution it recognized and affirmed in its self-declared “constitutional revolution.”
Now it seems that the court is attempting to inaugurate a second “constitutional revolution” – one under which the court, not the Knesset, decides how our written constitution
will read. The court is above the Knesset and above the constitution.
This judicial dictatorship cannot last and sooner or later the court will be put in its proper place. There are at least 70 (and I believe more than 85) members of Knesset who would vote for a dramatic reform of the court’s arrogated authority and for a formal basic law establishing clearly the relative authority of the Knesset and court. These MKs represent the desires and beliefs of the overwhelming majority of our citizens, but currently they are distributed between the government and opposition.
Ultimately, this will change and the necessary reform will be enacted.
No one is above the law, especially not the courts, which are created by law, subject to the law and are there to enforce it.