Dangerous Solution

That a majority of ministers in our government believes protection of human rights is an obstacle that needs to be overcome reflects a disappointing lack of appreciation for democracy.

Judges preside in court (Illustrative) (photo credit: ILLUSTRATIVE: MARC ISRAEL SELLEM)
Judges preside in court (Illustrative)
The Knesset should have the power to pass even those laws the High Court of Justice deems to violate basic human rights.
That was the upshot of a legislative motion ministers from Bayit Yehudi, Yisrael Beytenu and the Likud supported on Sunday.
In an 8-3 vote, the Ministerial Committee for Legislation approved government support for a bill Bayit Yehudi faction chairwoman Ayelet Shaked drafted that would enable the Knesset to override a High Court decision.
Shaked’s bill relates to cases in which the court disqualifies a law because it violates rights as embodied in Basic Law: Human Dignity and Liberty.
In September, a majority of High Court justices struck down the most recent amendment to the Prevention of Infiltration Law because they found it infringed the human rights of illegal migrants, most of whom come to Israel via Egypt from Sudan or Eritrea.
The amended law allowed the State of Israel to detain illegal migrants indefinitely. The detention center, located was “open” in the sense that detainees were not put behind bars. But they had to be present for roll call three times a day, which made it impossible for them to leave for any length of time, particularly since the detention center is located in an isolated, desolate area near the Egyptian border.
Also, the amended law allowed for the imprisonment for up to a year of migrants who entered Israel illegally.
As we argued at the time, the High Court ruling was wrong. Israel, like any sovereign state, has the right to protect its borders. The measures taken by the government and the legislature, far-reaching though they were, were within the bounds of what is acceptable according to international standards. And they were highly effective at discouraging people deliberating whether to make the hellish journey from Africa to Israel to extricate themselves and their families from poverty.
But while we dissent from the High Court‘s majority opinion, we believe that undermining the High Court’s powers is not only wrong, it is dangerous.
One of the lessons learned in the 20th century from the failure of liberal democracies to stand up to totalitarian regimes – often voted into power in democratic elections – is the need to set in place checks and balances that prevent the tyranny of the majority.
Though Israel has no constitution, we do have laws, such as Basic Law: Human Dignity and Liberty, that have quasi-constitutional status. The High Court’s power to strike down legislation it deems to violate human rights must remain sacrosanct in order for Israel to continue to function as a fully democratic state.
Admittedly, there is a danger in an overly activist High Court that places limitations on government’s powers.
But in weighing the dangers presented by migration (crime, demographic threat, economic drain) alongside the dangers that can result from the undermining of our democratic institutions (the trampling of the basic rights of minorities by the majority), the latter is clearly the greater danger.
Today the rights of illegal migrants are being compromised, tomorrow other minority groups might suffer.
There are moral truths that no majority can repeal.
Also, the High Court’s decision to disqualify the amended version of the Prevention of Infiltration Law does not rule out the possibility of passing a less harsh law. There are, after all, many ways of grappling with illegal migration. The Justice Ministry is working on legislation that has a better chance of meeting the High Court’s standards for human rights protection.
Thankfully, there is little chance that Shaked’s bill will pass in the full Knesset, since Justice Minister Tzipi Livni, as chairwoman of the Ministerial Committee, used her power to ensure the legislation would be put up for a vote in the full cabinet, where it is expected to be buried by Prime Minister Benjamin Netanyahu, who has in the past assiduously protected the autonomy of the High Court.
Shaked’s bill is euphemistically referred to as “a clause that overcomes.” That a majority of ministers in our government believes protection of human rights is an obstacle that needs to be overcome reflects a disappointing lack of appreciation for the tremendous sacrifices made so we can enjoy the freedoms offered by democracy.