Potent message

2,000 detainees will soon be back on the crime-ridden streets of south Tel Aviv, which has been turned into a lawless African enclave.

Eritrean migrants in Tel Aviv. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Eritrean migrants in Tel Aviv.
The High Court of Justice dealt Israeli democracy a grievous blow last week when for the second time in a year it nixed the notion of detaining illegal infiltrators and struck down Knesset legislation on the matter.
The upshot is that 2,000 detainees will soon be back on the crime-ridden streets of south Tel Aviv, which has been turned into a lawless African enclave – exacerbating the already dreadful plight of its Israeli residents.
Worse yet, it means that Africans have now been told that if they only manage to sneak into the Jewish state, they will become legally invulnerable despite having broken Israeli law by their illegal entry. This is a potent message.
The fence erected along much of the Egyptian border will not entirely stem the tide. Fences can be breached (as the Gazans have recently shown us).
But the direst wallop was delivered to what remains of Israel’s separation of powers, which is supposed to guarantee that each branch of government retains its independent authority and responsibility, thereby preventing any single branch from overwhelming the others. Going against this fundamental principal of democracy, the super-activist High Court has essentially bulldozed any remnant of checks and balances.
This is not the stuff of abstract rumination by legal philosophers. Judicial ultra-interventionism affects the daily lives of Israelis and impinges on the very controversies that polarize public opinion.
The High Court has vetoed more than 20 laws duly approved by the Knesset, steadily eroding its authority.
Moreover, only by a hairsbreadth did the court avoid doing the same in other exceptionally divisive issues (such as allowing Palestinian “family reunifications” within Israel proper, which would have meant an large inflow of hostile Arabs into this country, thereby upsetting the demographic equilibrium). The narrow margins by which such near-calamities were averted are no less frightening than the court’s actual high-handed judgments that overturned sometimes existential legislative decisions.
Most alarming is the fact that the 11 High Court justices have usurped nearly unchallengeable powers for themselves. There appears to be no avenue left for overcoming their imperiousness. The consequences for our democracy could be staggering.
The Knesset is directly elected and directly reflects the mood and opinions of the electorate. Overruling the citizenry’s representatives should be an option of last resort exercised only if these representatives are deemed to have egregiously overstepped their legal bounds.
Even then, canceling laws should not be a frequently applied prerogative. Via habitual judicial hubris, the court undermines the rule of law.
Not only are our justices not elected, but the selection of justices is not transparent and is not subject to effectual vetting by either the legislature or the executive.
Our system confers inordinate powers on the serving justices to nominate new justices. No candidate for the High Court, no matter how qualified, has ever be named to the bench, without the support of serving justices. The justices can block the appointment of any applicant they dislike and they had done so too many times for comfort.
In other words, the highest court in the land has been entrusted with the power to replicate itself and make sure that only justices cast in its own image – sharing the same world and judicial outlooks (often graduates of the same law school) – will ever get to serve.
This has left the nation under the sway of a small band that reflects the viewpoint of a tiny (and shrinking) minority – the Left. This minority rules Israel despite its recurrent electoral losses.
Inevitably, this anomaly translates into detachment from ordinary Israelis – such as the south Tel Avivians whose rights are regularly trampled.
Legal scholar Robert Bork, one of America’s prominent critics of judicial activism, wrote, “The pride of place in the international judicial deformation of democratic government goes... to the state of Israel. Israel has set a standard for judicial imperialism that can probably never be surpassed and one devoutly hopes will never be equaled elsewhere.”