Analysis from Israel
Israel, he says, cannot bar entry to enemy nationals during wartime – something all Western democracies do.

An e-mail written by Supreme Court President Aharon Barak made justifiable waves last week – but for the wrong reason.

What grabbed headlines was Barak’s citation of Justice Minister Haim Ramon’s prediction that were the Knesset to extend the current Citizenship Law unchanged, the High Court of Justice would overturn it. That, however, was hardly news to anyone who read last week’s 6-5 ruling upholding the law, since one of the majority justices stated explicitly that he considered the law unconstitutional, and refrained from striking it down only because it expires in two months anyway.

What was truly noteworthy about the e-mail was the insight it offered into how Barak makes decisions: not by interpreting the law, but by creating new laws in the Knesset’s stead.

The e-mail, to a friend at Yale University, analyzed the court’s decision on the Citizenship Law, which bars Palestinians married to Israelis from moving to Israel if they are below a certain age, on the grounds that the Palestinian terror war against Israel makes them security risks. In the e-mail, Barak described his own ruling on the case as follows, according to a Hebrew translation published by Haaretz: “In my ruling, I determined that the right to family life is a constitutional right of the Israeli spouse and his children. This right includes not just the right to marry, but also the right to live in Israel. I also determined that the law discriminates against Arabs, since all the Israelis who seek family unification with West Bank residents are Arabs. Since we do not have specific articles in our Bill of Rights that deal with equality and the right to family life, I decided that these rights are part of the right to human dignity.”

IN OTHER words, instead of examining Israel’s “bill of rights” – the Basic Law: Human Dignity and Liberty – and trying to determine what rights the Knesset intended it to confer, Barak decided what rights he thought it ought to confer, and then searched for something in the text vague enough to accommodate his desires.

Specifically, he first decided that Israelis ought to have the right to live with their spouses in Israel. Then, since no actual article of the Basic Law confers this right, he decided to substitute himself for the Knesset and add it to the law, by declaring it “part of the right to human dignity.” But Barak did not even stop at creating rights that the Knesset never envisioned. Instead, he created rights that it had explicitly rejected.

Even before the Citizenship Law was amended to restrict Palestinian immigration through marriage, Israeli marriage law was extremely restrictive. Under it, marriage is controlled by each faith’s religious establishment. Thus interfaith marriage, for instance, is impossible, because no legal authority is competent to perform it. Jews who want to marry Christians must do so overseas.

The Knesset discussed this issue while deliberating on the Basic Law, but in order to secure broad religious support for the law, it decided to leave the religious monopoly on marriage intact. In other words, the legislature deliberately decided that the law would not give Israelis the right to marry whomever they pleased. But Barak disagreed with this decision – and since he believes that the court has a better right than our elected representatives to determine the contents of Israel’s “constitution,” he decided to legislate a “right to marry” from the bench.

THE SAME holds for equality: The Knesset discussed this issue and deliberately decided to leave equality off the law’s list of rights. But Barak disagreed with this decision, so he legislated this right from the bench.

Moreover, he gave this “right” a far more expansive definition than the norm in other Western democracies. According to Barak, Israel cannot bar entry to enemy nationals during wartime – something all Western democracies do – because only one particular segment of the population, Israeli Arabs, happens to want to marry these enemy nationals. In other words, even though the law’s intent is not discriminatory – it is aimed not at Israeli Arabs, but at enemy nationals – it is unconstitutional because it affects one segment of the population more than others.

Yet by that standard, numerous laws, both in Israel and in other democracies, would be unconstitutional. Israel’s ban on polygamy, for instance, would be unconstitutional, because only the Beduin actually practice polygamy. So would Denmark’s law barring teenage marriages with noncitizens, since Muslim immigrants are the only Danes who typically marry teenagers from abroad. And so forth.

But for all Barak’s outrageous usurpation of the Knesset’s prerogatives, the fault, as MK Michael Eitan (Likud) aptly noted last week, ultimately lies with the Knesset.

First, had the Knesset not legislated such impossibly vague laws – what, for instance, does the right to “dignity” actually mean? – the justices would find it harder to “interpret” these laws to mean whatever they please. And second, the Knesset has almost never responded to such judicial power grabs by passing amendments to reassert its own interpretation of the Basic Law. That is what Eitan is now proposing in response to the Citizenship Law ruling: amending the Basic Law to state explicitly that it cannot be used to overturn legislation on such fundamental policy issues as immigration, citizenship and personal status.

Clearly, this is not an ideal solution, since “constitutional” legislation should not be riddled with particularistic exceptions. Yet given that the Knesset has allowed the court to legislate from the bench without hindrance for years, this may be necessary to restore the proper balance between the two branches of government. Only by swiftly countering judicial overreach through legislation can the Knesset send the message that it will no longer tolerate such power grabs.

As Eitan correctly said, the court’s “cynical, exaggerated and baseless use” of the Basic Law in this case is ultimately “the rotten fruit of a weak Knesset that is not maintaining its basic powers.”

One can only hope that he will succeed in rousing his colleagues to finally take a stand against such judicial usurpation.

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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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