Supreme Court – threat or promise
Report followed by Ha’aretz editorial with summary of the Basic Law: Human Dignity and Liberty in Notes and links.
Supreme Court President Miriam Naor
Chief justice raps Netanyahu for trying to curb Supreme Court’s power
Miriam Naor’s comments come as Likud is crafting a bill to let parliament override the top court.
By Revital Hovel, Ha’aretz
April 29, 2015
The Israeli president, the current and former Supreme Court presidents and the state attorney general on Wednesday all sharply criticized Likud’s legislative efforts to weaken the court.
Supreme Court President Miriam Naor noted that her team was “the last barrier against harm to human dignity.” She was speaking at a conference on human dignity as a constitutional principle; the event was held at the President’s Residence in Jerusalem.
Her words were echoed by former court presidents Aharon Barak and Asher Grunis as well as by Attorney General Yehuda Weinstein. They were reacting to Likud’s intentions to include in the coalition agreement two laws to weaken the Supreme Court. In response, Likud MK Yariv Levin called on senior members of the judicial system to refrain from trying to influence the coalition formation process.
Netanyahu has told all parties expected to join his governing coalition that he will include two bills as part of the coalition agreement. In the Supreme Court bill, Netanyahu wants to require a vote of at least nine justices out of eleven to rule a law unconstitutional.
In another bill, the majority on the Judicial Appointments Committee would shift to politicians from Supreme Court justices. The number of politicians on the panel would rise to six out of nine members, from four today.
Naor noted that in the weeks between the March 17 election and the forming of a government, “many question marks remained” — including on the legal system.
“The need for guarding human dignity, and the rights derived from this principle, are not an obvious thing. But the preservation of human dignity cannot be expressed at a level of declarations only,” she said.
“In our democratic system, the court is the last barrier against harm to human dignity and other fundamental rights. This is one reason Israel is seen as part of the family of democratic nations.”
As Naor put it, “For the principle of preserving human dignity to govern our lives in practice, not just serve as a declaration, the principle needs a watchman. This is the interest of all the country’s citizens and residents; it is the interest of the State of Israel.”
Naor later added: “It is hard to build and easy to destroy.”
President Reuven Rivlin warned at the conference against expanding the Judicial Appointments Committee, stressing that Israel should be guaranteeing a vibrant democracy. He said the proposal to bypass the High Court of Justice basically bypasses the Knesset and violates “the rules the Knesset made for itself.”
Rivlin also noted his fear of the prospect of establishing a constitutional court. “Woe unto us if there will be a constitutional court,” he said, “because then politicians could turn it into a political court.”
Bypassing democracy
Above L, Aharon Barak, Asher Grunis. Below Yehuda Weinstein
Aharon Barak, a former Supreme Court president, told Rivlin that Israel has a narrow, unstable constitution. To the degree that if the Knesset violates rights enshrined in the Basic Law of Human Dignity and Liberty, it is doing something illegal, and the court can be of assistance, and in that sense Israel has a constitution albeit it unofficially.
“There is no law to bypass the High Court of Justice. The problem is a law that bypasses democracy, in which the Knesset violates individual rights that the Knesset itself had determined harms democracy,” he said. The method is not perfect, and there is room for improvement, but it’s very good.”
In response to the justices’ remarks, Attorney General Yehuda Weinstein said in a statement that he “opposed in the past and still opposes initiatives that could harm the independence and power of the Supreme Court and that “an independent Supreme Court is essential to the existence and strength of the State of Israel as a democracy. It promotes worthy values and human rights.”
Weinstein said that the Supreme Court contributed to the image of the State of Israel abroad as a properly run and progressive country and that it is one of Israel’s greatest assets. “The attorney general intends to stand guard in this matter,” the statement said.
In contrast, MK Levin told Kol Israel radio that democracy is not government of the judge but rather government of the people.
“Whoever thinks that judges have lofty abilities and lofty values that need to trump the will of the public does not believe in democracy.”
On Monday, Prime Minister Benjamin Netanyahu said he still “aspires” to pass legislation allowing the Knesset to override Supreme Court rulings, despite the opposition of a key partner, Moshe Kahlon’s Kulanu party.
Implementing the prime minister’s proposed changes would undermine the tenets of Israel’s democratic nature.
Ha’aretz Editorial
April 22, 2015
The changes in status to the Supreme Court that Prime Minister Benjamin Netanyahu is promoting contradict the vow he made two months, ago during the ceremony for then newly-minted President Reuven Rivlin, when he promised not to seek such changes. It’s impossible to know if Netanyahu explicitly said things that he did not believe, or if he is now reversing his position in an attempt to give Zionist Union political cover to enter the government as a last ditch attempt to save the Supreme Court. In any case, implementing Netanyahu’s proposed changes would critically damage some of Israel’s greatest achievements, which stand as very important tenets of its democratic nature. Namely, the professionalism and independence of its judicial branch, as well as the Basic Law on Human Dignity and Freedom.
The courts, led by the Supreme Court, are a professional system whose founders were smart enough to release it from the need to satisfy political factions. The law and public service are its only guidelines. For that reason, the courts still have the public’s trust, despite the years-long smear campaigns against it by politicians and special interests. Transferring the balance of power on the justice selection committee to the politicians means only one thing: Political considerations and the desire to satisfy the politicians will seep into judicial rulings in every instance, the law will blur, and a central tenet of Israel’s democracy – an independent court bound only by the law – will be no more.
The prime minister is also looking to destroy the Basic Law on Human Dignity and Freedom. Netanyahu is seeking to implement a change that would allow for re-legislation, with a majority of 61 MKS, of a law that the court struck down for being in violation of a Basic Law. Overturning a Supreme Court decision would be possible with nothing more than the coalition majority, which would allow the coalition to discriminate against minorities that are primarily represented by the opposition, be they the Arab population (today) or the settler population (tomorrow). The importance of the Basic Law on Human Dignity and Freedom lies in its effectiveness at defending the weak and minorities, whose rights are often ignored. The Supreme Court’s decisions to strike down possible laws found to be in violation of this Basic Law bolstered Israel’s status in the world as a constitutional democracy, and even if the court’s decisions have garnered criticism from some, they’ve also cumulatively improved human dignity and freedom in Israel.
Moshe Kahlon, who has declared he will not agree to the steps being taken against the court, is right. Let’s hope he sticks to his position.
Notes and links
Summary from Wikipedia
Rights protected by Basic Law: Human Dignity and Liberty
The rights protected by this law are detailed in several clauses:
- Section 1: The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law tile values of the State of Israel as a Jewish and democratic state.
- Section 2: There shall be no violation of the life, body or dignity of any person as such.
- Section 3: There shall be no violation of the property of a person.
- Section 4: All persons are entitled to protection of their life, body and dignity.
- Section 5: There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.
- Section 6:
- (a) All persons are free to leave Israel.
- (b) Every Israeli national has the right of entry into Israel from abroad.
- Section 7:
- (a) All persons have the right to privacy and to intimacy.
- (b) There shall be no entry into the private premises of a person who has not consented thereto.
- (c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.
- (d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.
However, several cardinal human rights are missing from this document, such as the Right for Equality, Freedom of Speech, Freedom of Religion, Freedom of Protest, and others. These rights were given to the residents of Israel by general principles which existed before this Basic Law. Although these rights were not included in the law, some jurists, such as former President of The Supreme Court of Israel Aharon Barak, see these rights are directly derived from the “right to dignity”.