With the stroke of a pen, the High Court of Justice struck a decisive blow to Israel’s democracy last week, one that should send a shudder down the spine of anyone who cherishes basic principles such as the separation of powers and individual liberty.
For the second time in the past year, the learned judges tossed out a law duly passed by the Knesset regarding the detention of illegal migrants, thereby usurping for themselves power to which they are not entitled and authority far beyond their scope. In effect, the court flexed its institutional elbows, shoving aside the executive and legislative branches of government and riding roughshod over the nation’s elected representatives.
This is unhealthy, unacceptable and unpardonable, and it is time for measures to be taken to rein in a Supreme Court gone wild.
Back in September 2013, the justices struck down the government’s policy vis-à-vis illegal migrants, which included the possibility of detention for up to three years, and gave it three months to come up with a new course of action. In December, the Knesset did just that, passing the Prevention of Infiltration Law which, among other things, empowered the government to send migrants to a detention facility for a shorter period of up to one year.
With southern Tel Aviv overrun by thousands of illegals from Africa, it was essential that the authorities be armed with the requisite legal tools with which to contain and turn back the flow of migrants. But even that proved to be too much for the judges, who by a vote of seven to two nullified the Prevention of Infiltration Law and ordered the government to shut down the Holot detention center in the Negev.
Their logic? Detaining people for a year is a violation of their rights – even if they themselves trampled on the law by coming here illegally. As a result, the government is severely limited in what it can do, with the maximum detention period now being just 60 days.
Whatever one thinks of how Israel should handle illegal migrants is beside the point.
The problem here is that the High Court has become a Supremely Arrogant Court, one that has invaded the sphere of policy-making, which is supposed to be the exclusive preserve of the government and the Knesset.
Take, for example, Justice Uzi Vogelman, who sided with the majority on the court.
Vogelman said that while “the heart understands the difficulties” which the state must contend with on the migrant issue, “the conscience will not suffer the chosen solution.”
Sounds reasonable, except for one thing: who gave Vogelman the right to impose his conscience on the nation? As a judge, his job is to uphold the law. It is most assuredly not to engineer society or fashion its values.
The court’s ruling was based on its own belief that the state should not detain a migrant for an extended period if there is no deportation procedure in place. Since many of the illegals cannot be repatriated to their countries of origin, such as Eritrea or the Sudan, there is no immediate solution regarding what to do with them, so the court deems it proper that they be allowed to roam free.
But that is a conviction rooted in the judges’ own values, and not anchored in law. And that is precisely the problem.
While insisting that the court was not overjoyed at the prospect of overturning legislation, Vogelman wrote that, “There is no choice but to declare the annulment of the law: We did it without desire; we did it out of obligation.”
This is absolute hogwash. It is the height of conceit for justices to place themselves above the people and their elected representatives in a democracy.
Of course this is hardly the first time that Israel’s High Court has engaged in judicial activism. For much of the past two decades it has routinely intervened in policy issues ranging from the IDF draft to the location of the security barrier in Judea and Samaria.
But this trend must be halted, and it is time for the Knesset to restrict the court’s unhindered power in order to preserve and protect the people’s sovereignty.
Simply put, it is not for judges to wade into the policy-making domain. After all, who needs a parliament or even a government if the court dictates what Israel’s policy should be? This is the tyranny of the minority, and no less an authority than Thomas Jefferson – who knew a thing or two about the importance of checks and balances – repeatedly warned against allowing judges unrestrained control.
In a letter he wrote to former first lady Abigail Adams on September 11, 1804, Jefferson insisted that, “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
Needless to say, we are not on the verge of an outbreak of despotism. But we are facing a crisis of constitutional proportions, one in which the balance of power among the three branches of government is steadily eroding.
Stemming the tide, and reining in the court, is essential to ensuring that Israel’s democracy will continue to go from strength to strength.