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SREBRNIK: Is Israel’s supreme court too powerful?

Henry Srebrnik
Henry Srebrnik - Contributed

Those who follow the rhetoric endlessly spewed by Israel’s many enemies know that it is referred to, ad nauseam, as a theocracy, a racist country, a colonial-settler state, an apartheid entity, even a genocidal nation, among other definitions.

It is compared to the formerly white-minority ruled Rhodesia and South Africa, and even Nazi Germany.

Its enemies are so obsessed with it that, in their fevered imagination, they consider it worse than such countries as Iran, Myanmar, Saudi Arabia, Sudan, Turkey, and Zimbabwe – all involved in massive human rights violations.

So it may come as a surprise to learn that Israel, has a very powerful supreme court composed of liberals and leftists, who are the bane of right-wingers from Prime Minister Benjamin Netanyahu on down.

Indeed, its detractors consider the country a “judiciocracy.”

Israel’s parliament, the 120-seat Knesset, is a unicameral legislature, with no upper house to review legislation it passes.

It is also a Westminster-style political system, with the executive branch, including the prime minister, comprising elected members of the assembly. The presidency is largely a ceremonial position.

Supporters of the Supreme Court insist that any limitation on judicial review will render the country vulnerable to an unchecked Knesset.

But it’s the court that is unchecked. Virtually every difference between the legislature or executive and the court is resolved in favour of the latter. There are virtually no safeguards against its power.

In Canada, the circumstances in which our court can intervene in actions taken by the other branches of government are circumscribed. Its authority is limited to those cases brought before it.

And decisions can be overridden by the “notwithstanding clause” of the constitution.

Not so in Israel. There the court itself routinely disqualifies government actions on grounds that amount to little more than disapproval, hobbling the legislators elected by the people.

It makes frequent use of a doctrine it calls “interpretation by objective purpose,” which means that a law can be interpreted neither according to its plain meaning nor according to the legislature’s intent, but however the court deems appropriate.

In a further expansion of the already considerable power it wields, the court has agreed to review the constitutionality of last year’s Knesset passage of the Nation-State law, which states that “the right to exercise national self-determination” in Israel is “unique to the Jewish people.”

It was passed as a Basic Law. They are Israel’s equivalent of constitutional legislation since the state has no constitution as such.

Attendees at a conservative political conference held in May in Jerusalem have suggested that the Knesset rein in the power of the court by passing a Canadian-style “override” law.

It would scale back a judicial system felt to be controlled by unelected elites, one they frequently refer to as Israel’s “deep state,” and would block the High Court from overturning Knesset legislation or government administrative decisions.

The Israeli academy and intelligentsia, as well as the cultural, media, legal, and bureaucratic elites, are characterized by pronounced progressivism, while the dominant conservative voice in the Israeli public gets ignored by them.

How did this come about? Amiad Cohen, the director of the Tikvah Fund in Israel, explained that since the 1990s a period of liberal judicial activism spearheaded by former Supreme Court head Aharon Barak has become ever more pronounced.

As Bar-Ilan University Professor Moshe Koppel asked, should Israelis “feel more threatened by a relatively large and heterogeneous body that stands for re-election from time to time, or by a small and homogeneous body that has been inbred for generations, is answerable to nobody, and has consistently extended its own authority?”

For him, the answer is clear. As liberal decrees replace legislative powers. decision making, in other words, sovereignty itself, is being relocated to the courts.


Henry Srebrnik is a professor of political science at UPEI.

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