By: Josh Wine, Political Blogger
“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary”
– Andrew Jackson, 1822
Frustrated by recent ‘left-wing’ Supreme Court rulings, Israel’s Cabinet will discuss next week a bill that would allow the Knesset to override Supreme Court judicial review. According to the bill’s sponsor, Ayelet Shaked, ‘The Supreme Court has stepped into the legislature’s shoes and doesn’t allow it room to maneuver. At times, it seems as if it doesn’t accept the fact that there is a sovereign body elected in democratic elections. It’s inconceivable that the legislature should be handcuffed by the judiciary’.
Relative to the price of Milky in Berlin and the Palestinian Authority machinations at the United Nations, this technical Bill has attracted little public attention. That is unfortunate because it is a terrible proposal with far-reaching and long-term implications for everyone living in Israel, or, indeed, under Israel’s control. Israel is a young country, whose political institutions and principles are still in formation. This Bill is a direct attack on the principle of Separation of Powers and judicial review, those most important constitutional bulwarks against tyranny.
The modern definition of Separation of Powers was first articulated by Montesquieu, who in 1748 proposed the separation of political power into executive, legislative and judicial branches. The purpose of this separation, which was subsequently embedded in the Constitution of the United States, was to reduce the scope for the executive or legislative branches to abuse their power. No branch had a monopoly on power and each held the other in check.
Most critical to Montesquieu’s concept was the independence of the judiciary for it is the judiciary that protects the public by restraining the otherwise limitless power of the legislature. As Alexander Hamilton put it in the Federalist Papers, ‘[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.’
The founding fathers and the thinkers on whom they based their ideas were supremely sensitive to the corrupting nature of power. They knew, based on experience and history, that every man invested in power is apt to abuse it. He may abuse his power for his personal benefit, for his political gain, to promote some cause he deems useful to the public good, or to harm some enemy he deems deleterious to it. It doesn’t matter. Unchecked sovereign power is the precondition for tyranny.
The founding fathers also knew that an independent judiciary, empowered to review legislation for compatibility with the constitution, is critical for protecting the public. Majority rule is not enough. Even majorities must be constrained, lest minorities be abused. In any society, particularly in such a fractured one as Israel, it is not hard to imagine minority groups being persecuted at the will of the majority. In times of stress, the mob will invariably clamor that ‘something must be done’, ‘lock them up and throw away the key’, ‘hang the bastards’, ‘force them to fly the flag’, or whatever. Demagogic politicians (and we have many), acutely sensitive as they are to vacillations in the public mood, will naturally jump on the bandwagon and may even ride it to political power. Yet in a constitutional democracy, all that rage and all that fury cannot override the rule of law and the rights of people. Even unpopular people. Even minorities. Even unpopular minorities. Even asylum seekers.
Israel’s Basic Law is the closest thing we in Israel have to a constitution. It has a much shakier status than its American equivalent and excludes significant rights that Americans take for granted. Nevertheless, it is in the Basic Law that our rights to life, liberty, property, freedom of occupation, and privacy are enshrined. Yet these ‘rights’ of ours are valuable only to the extent that they cannot be overridden by a Knesset majority. If Shaked’s bill passes, then these rights will be simply devoid of meaning. They will be provisional rights, temporary rights, removable rights, in short, no kind of rights at all.
Ayelet Shaked is not the first to complain that checks and balances make governing slower and more difficult. She is not the first to declare that her government is the ultimate sovereign, which, since it can make laws, should be above the law. But Israel, for the time being, is a state governed by the rule of law, and that law must apply to, and be interpreted independently of, the legislature. The alternative will pave the road to tyranny and the erosion of human rights for us all.
I do not for a moment belittle the problem of illegal immigration, or the impact it has had on some segments of our population. It is a real problem and needs to be solved but it must be solved within the Basic Law, or that law has no meaning. The Supreme Court has ruled that indefinite detention in a desert prison is not constitutional, not for you, not for me, and not for asylum seekers. I for one am proud to live in a country where the Supreme Court can wave the constitution at politicians and say ‘no’.
Visit Josh Wine’s Blog: http://bigthinkisrael.blogspot.co.il/