Israel's High Court protects people from across the political spectrum - opinion

The legal reforms will remove barriers to misuse of power and open the door for more criminals to enter politics and destroy the state.

 THE HIGH Court ruled that regulations arbitrarily preventing anyone under 21 from receiving compensation for the 2005 Gaza eviction did not comply with the proportionality requirement of the Basic Law: Human Dignity and Liberty. (photo credit: FLASH90)
THE HIGH Court ruled that regulations arbitrarily preventing anyone under 21 from receiving compensation for the 2005 Gaza eviction did not comply with the proportionality requirement of the Basic Law: Human Dignity and Liberty.
(photo credit: FLASH90)

For a moment, just imagine that the government is going to pass legislation or has passed regulations that drastically affect your well-being. Let’s say you are not a Palestinian or Israeli-Arab, Ethiopian Israeli, a woman, LGBTQ or a non-Jewish person.

Let’s for argument’s sake say you are a white, religious, Jewish, 20-year-old man. Let’s say you are a settler who has just been evicted from your home in the Gaza Strip and the government has instituted regulations that arbitrarily prevent anyone under 21 from receiving compensation. It has also prevented you from making a claim through the regular civil courts. Who do you turn to address this injustice?

Where do you turn for justice?

You turn to the High Court. That’s exactly what happened in 2005, when the High Court ruled that this arrangement did not comply with the proportionality requirement of the Basic Law: Human Dignity and Liberty, and that Gaza evacuees should actually get extra compensation. Yes, the High Court protected the rights of religious settlers. 

What else has this basic law allowed the court to do? It has protected people from all across the political and economic spectrum: it protected economically disadvantaged people from having welfare benefits taken away from them arbitrarily just because they have a car but it also protected investment bankers from having their livelihoods taken away from them by onerous retroactive new qualification standards. It protected Palestinians from losing their land retroactively to illegal construction.

But it also protected wealthy Israelis from a tax on third homes without a proper legislative process. It protected prisoners from being handed off to the control of private companies and it protected the rights of refugees from being imprisoned for three years without processing their claims for asylum. But it also protected soldiers – young men and women – from being held under military arrest for more than 96 hours without seeing a judge. 

SETTLERS CARRY out the giant menorah from the synagogue at Netzarim, the last Gaza settlement to be evacuated, August 22, 2005 (credit: ARIEH O’SULLIVAN)SETTLERS CARRY out the giant menorah from the synagogue at Netzarim, the last Gaza settlement to be evacuated, August 22, 2005 (credit: ARIEH O’SULLIVAN)

If you notice a theme, it is the Basic Law that provides that we cannot have our human rights to personal freedom, occupation, expression, life and liberty taken away from us in ways that are disproportionate. It is there to protect all of us, each and every individual, from excesses, abuses and outright persecution by the government. This law was not invented by left-wing parties, it was enacted by a bipartisan effort and it enshrined years of carefully built-up preexisting case law that gave expression to the basic promise of the Israeli Declaration of Independence that Israel “will ensure complete equality of social and political rights to all its inhabitants.” 

This deserves emphasis. Just as Israel could not be established on just any piece of land, Israel was not the establishment of just any sort of Jewish state. It was established as a home for a people that had suffered generations of state persecution with devastating results. It was a state that would ensure the social and political rights of all its inhabitants.

And lest we be mistaken, the Basic Laws are not a recent political invention, they have been passed gradually since the foundation of the state. In fact, the first eight of these laws were passed between 1958 and 1988 and deal mainly with the organization of the government. They are part and parcel of the foundation of Israel and the very legitimacy of this current government. 

The override clause being proposed by the government would allow the Knesset to override any objections of the High Court, with a simple majority of 61 votes (just 50.8%) of the Knesset, essentially allowing the same people who enacted a problematic law to override any objections of the High Court to it. And just to make sure that the independence of the judiciary is completely demolished, the government wants to stack the appointment committee of High Court judges so that 7 of 11 members would be government appointees. That’s like letting Argentina choose the referees for the World Cup final. 

Checks and balances protect democracies

IF ANY of this sounds problematic, that’s because it is. Most democratic countries are protected by numerous checks and balances on the power of the state: a clear division of power between the legislative and judicial branches, a government that has two houses of parliament, divisions of power between federal and state governments, and a clear division between religion and state – none of which exist in Israel. 

Notable Israel and Benjamin Netanyahu supporter Alan Dershowitz has publicly described the override clause as a truly terrible idea. He points out that Israel’s legitimacy as a democratic country is at stake. Even those who support it, will suggest that the override clause should only be used with a super-majority of Knesset members.

The government and some media outlets have called on foreign experts to explain how the High Court’s judicial activism has crossed all bounds. As can be seen from the list of legal changes this law has actually allowed in practice, this claim is pure rubbish. 

Perhaps most tellingly, one of the main obstacles for the enactment of a constitutional bill of rights at the founding of the state of Israel was the opposition of the ultra-orthodox leadership, who probably rightly feared that guarantees of civil rights, such as freedom of religion, women’s and LGBTQ rights, would conflict with their rule of law. Indeed, the High Court has refused several times to uphold the preferential treatment of ultra-orthodox citizens over other citizens with regard to exorbitant study stipends and exemptions from mandatory army service.

To add insult to injury, this government is proposing an expansion of the jurisdiction of the religious courts. If the government was truly concerned with judicial transparency and judicial activism, it would be reforming the rabbinic courts, which currently rule on the most intimate matters of people’s lives, causing enormous damage to personal liberty at great cost to the taxpayer without any oversight or accountability.

It is a private fiefdom of ultra-Orthodox power and control that concerns itself not with the self-rule of ultra-orthodox communities but rather with the enforcement of ultra-Orthodox beliefs and values over the wider secular and traditional community. If you are wondering where true injustice resides, look no further than the religious court system. And yet, this system is scheduled for expansion and greater power.

Make no mistake, the judicial reform this government is proposing is not aimed to protect its citizens. Its aim is to only protect the government itself and specifically certain individuals within it. And even if you are inclined to trust Aryeh Deri and Netanyahu, what this legal reform does is remove all the barriers to excessive use of power, open the door for more hardened criminals to enter politics and destroy the foundational promise that the state of Israel “will ensure complete equality of social and political rights to all its inhabitants.” 

I urge you to act in whatever way you can – through personal influence or public acts of protest – to prevent these legal reforms. Choose human dignity and liberty: protect the High Court and protect the original vision of Israel. Protect us and our children. Protect yourself.

The writer, CEO and founder of Workwell, is chair of Mavoi Satum, a nonprofit that advocates for equal divorce rights.