Overriding democracy

Political realities have forced Netanyahu to recalibrate his party’s position.

Prime Minister Benjamin Netanyahu listens to an aide at a cabinet meeting on April 11, 2018 (photo credit: RONEN ZVULUN/REUTERS)
Prime Minister Benjamin Netanyahu listens to an aide at a cabinet meeting on April 11, 2018
(photo credit: RONEN ZVULUN/REUTERS)
Prime Minister Benjamin Netanyahu has a long history of protecting the autonomy and strength of the Supreme Court as an important foundation of Israel’s democracy.
In February 2012, during the swearing-in of Asher Grunis as president of the Supreme Court, Netanyahu declared, “I believe a strong and independent justice system facilitates the upkeep of all other democratic institutions... in recent months I have blocked any legislation that threatens to harm the justice system... every time that a law seeking to curtail the autonomy of the courts reaches my desk I will block it.”
Netanyahu’s defense of democracy has a long tradition in the Likud, which dates back to former Likud prime minister Menachem Begin, who was himself the protegé of Revisionist leader Ze’ev Jabotinsky.
Jabotinsky wrote: “Even a government of majority rule can negate freedom, and where there are no guarantees of the freedom of the individual there can be no democracy... The Jewish state will have to be such, ensuring that the minority will not be rendered defenseless.”
Begin is credited with saying “There are judges in Jerusalem” as a defense against attacks on Supreme Court justices.
Political realities have, however, forced Netanyahu to recalibrate his party’s position. The prime minister is under pressure to introduce controversial legislation that seeks to override the Supreme Court.
Starting in 2012, when the government began to pass laws designed to stem the flow of illegal immigration, the Supreme Court has found these laws to be a violation of Basic Law: Human Dignity and Liberty and, therefore, annulled them. The court’s justices have taken exception particularly to the government’s policy of detention of migrants as a deterrent to future illegal migration, claiming the barrier built in the South to prevent infiltration is sufficient.
Now Netanyahu is reportedly supporting a legislative initiative that would enable the Knesset to overrule the Supreme Court and pass legislation allowing for long-term detention designed either as a deterrent to other potential migrants to Israel or as a means of forcing migrants to agree to deportation to countries where their safety cannot be assured.
It is still not entirely clear whether this “override clause” will be limited solely to the migrant legislation or will be a broader attack on the Supreme Court’s autonomy, as many on the Right would like.
Even if the “override clause” is restricted to the migrant issue, it would set a dangerous precedent.
“Israeli democracy” is not just the rule of the majority.
Begin and Jabotinsky envisioned a substantive democracy that protects the basic human rights of the weakest, even those lacking political representation, such as migrants who arrived in Israel illegally, not to mention asylum-seekers fleeing persecution.
We hope Netanyahu is similarly committed. No government, no matter how popular, should have the power to undermine basic human rights. Overriding court decisions on an ad hoc basis would mean the end of a balance of powers.
At the same time, we understand, and have consistently supported, the government’s zero-tolerance policy toward the vast majority of migrants who came to Israel in search of economic opportunities, not asylum. Israelis are overwhelmingly in favor of removing as many illegal migrants as possible.
Israel is already struggling to integrate a large Arab minority that votes for a political leadership that is at best highly critical of Israel and its policies, if not openly antagonistic to Jewish sovereignty here.
Israel also devotes large amounts of energy and resources to the conflict with the Palestinians.
Attempts by tens of thousands of Gazans to rush the border separating the Hamas-controlled Strip from Israel illustrates the challenges faced by a tiny Jewish state surrounded by hundreds of millions of Arabs.
If Netanyahu would like to legislate an “override clause,” he should do it not on an ad hoc basis in response to political pressure, but rather as part of a broader reform that includes a renewed government commitment to a bill of rights, a reaffirmation of the court’s autonomy, and, when absolutely necessary, the need for a super-majority of MKs for any override.
Democratic rights need to be nurtured and defended because they can be easily lost.
Netanyahu belongs to a political tradition that values democracy. He shouldn’t neglect it.