Justice Minister Yariv Levin on Wednesday night attacked the Supreme Court’s order to postpone the incapacity amendment to the next Knesset, saying it “harms the unity of the people which is obligatory at this time.”
He explained that “The decision of the Supreme Court judges to publish rulings that are highly disputed even among themselves, while our soldiers are sacrificing their lives on the front harms our unity.”
Were harm to our unity the only offense that was committed by the court I would have considered it a win. Alas, saying the court harmed our unity is like suggesting the Titanic had navigation difficulties. It did, but then, you know, it also sank to its watery grave.
A mere two days after its ruling that killed an amendment to the Basic Law that restricted the use of the reasonability clause, the court rejected the applicability of another amendment to the Basic Law concerning the disqualification of a sitting prime minister. Two judicial interventions in two days in basic laws, after 75 years in which it had been unimaginable that the court would tackle even one. In committing this decrepit distortion of democracy, the justices grabbed unprecedented powers over the other two branches of government.
To sum it up: on Wednesday, the High Court ruled by a narrow majority of six to five to postpone its ruling on the incapacity amendment until after the next election, the next Knesset, after, on Monday, ruling by a narrow majority of eight to seven to kill the reasonability amendment.
Wednesday’s ruling is far more damaging to Israel’s democracy as it marks a new height of judicial activism. The court’s latest activist innovation attacks the existing order not only through the revolutionary move of permitting judicial review of a basic law – heck, they ate that horse on Monday – but through the additional limitations that the court imposed on the Knesset’s legislative work.
Wednesday’s intervention by the Supreme Court gives it power not only over the content of given laws but over the presumed intentions of the lawmakers. The ruling explicitly states that “personal legislation” – such as the amendment shielding prime ministers from being declared incapacitated based on anything other than a medical condition – will be permitted “when the time calls for it,” meaning that the decision of what constitutes a proper legislative need is grabbed by the Supreme Court, making it the final arbiter on whether there should be legislation in the first place.
From this point on, every time the legislator seeks to respond to a changing political reality, to a change in reality, or to a new interpretation put forward by any petitioner to existing legislation, it will be subject to a judicial review that examines the motivation and intention of the legislator in real-time and may disqualify it altogether and without any additional reasoning other than the court’s objection to a bill’s perceived motive, in the most arbitrary manner.
The only other place where the courts have this much power is Iran, where the supreme religious court oversees the political process.
