Attempts to Curtail the Supreme Court

The Israel Democracy Institute offers a look inside efforts to reduce politicization of Israel's Supreme Court.

Flash 90

Towards September’s re-run national elections in Israel, the Israel Democracy Institute has launched a new non-partisan campaign to counter initiatives aimed at enacting an “expanded override clause” and possibly altering immunity laws for elected officials. Such legislation would provide the government with almost unlimited political power that could infringe upon the rights of individual citizens and minority groups by depriving them of the protection of the courts. This effort comes in the wake of the coalition negotiations that followed the previous election in April, when similar proposals were raised during the efforts to form a government. The goal of the campaign is to warn against attempts to curtail the independence of the Israeli judicial system that would lead to unlimited power for elected politicians.

The Supreme Court’s power to overrule legislation is rooted in Israel’s Basic Laws. The “limitations clause” of Basic Law: Human Dignity and Liberty (section 8) limits the ability of Knesset legislators to pass laws that violate the rights protected by the Basic Law. Similarly, it states that the Basic Law “shall not affect the validity of any law which is in effect prior to the commencement of the Basic Law [1992],” but therefore can affect the validity of new laws.

The campaign aims to increase awareness about these issues among the general public while also encouraging decisionmakers from across the political spectrum to renounce such proposals. Guiding IDI’s efforts is the understanding that, though it is legitimate to consider altering the existing balance between the branches of government, such changes should not be made by abandoning basic democratic principles and they should not be made at the expense of the judicial branch’s independence or authority.

“The attempts to increase the power of politicians while diminishing the judicial branch’s ability to perform oversight over executive and legislative decisions would, in effect, obliterate the separation of powers in Israel,” said Yohanan Plesner, president of IDI. “The initiatives that were contemplated during the recent coalition negotiations threaten the basic principles of democracy that are in place to thwart attempts by elected leaders to exert excessive use of power and to ensure equality and individual freedoms for all citizens,” Plesner continued.

“The Supreme Court is the only institution in Israel that protects the rights of individual citizens and restrains the otherwise unlimited power in the hands of the elected majority in parliament,” Plesner added. “In every other democracy in the world there are multiple checks on power. Israel, as opposed to the U.S., has no constitution, no two independently powerful houses of parliament, and no local government that can balance the will of the federal authority. This is why it is so vital for the judicial branch to retain its independence and the authority to serve as the last resort of the individual citizen against the centralized power of the state,” Plesner concluded.

Throughout its campaign, IDI will highlight a number of Supreme Court rulings that safeguarded the rights of individual citizens and minority groups. Among the cases to be used will be the Alice Miller decision (allowing women to apply to the IDF’s flight school), the Emmanuel decision (barring attempts to discriminate against school girls based on their ethnic background), the decision instructing the government to increase compensation for citizens relocated during the 2005 Gaza disengagement and the court decision demanding that the government increase school shelters in Sderot and other communities adjacent to the Gaza border.

The article was published in the Atlanta Jewish Times.