Israel’s Judicial Tyranny and Its Anti-Democratic Defenders

June 19, 2019 | Moshe Koppel
About the author: Moshe Koppel is a member of the department of computer science at Bar-Ilan University and chairman of the Kohelet Policy Forum in Jerusalem. His book, Judaism Straight Up: Why Real Religion Endures, was published by Maggid Books.

Recent statements by Israel’s minister of justice Amir Ohana have brought back to public attention the controversy between those who wish to defend the unchecked power of the country’s overweening Supreme Court—paradoxically condemning any complaint about the power of this unelected oligarchic body as “undemocratic”—and those who wish to impose limits on its authority. Moshe Koppel comments:

[O]ne might be tempted to argue that the court is limited by its dependence on the law, that it has to work with the laws it’s given by the legislature. . . . This sounds plausible, but it doesn’t hold water. First, the court here makes frequent use of a [unique] doctrine it calls “interpretation by objective purpose,” which means that a law should be interpreted neither according to its plain meaning nor according to the legislature’s intent, but rather however the court deems appropriate. In short, statutory language does not constrain the bench on any occasion in which the bench does not wish to be constrained.

Second, and more shockingly, the claim that statutes can only be struck down in accordance with constitutional principles is also now being challenged. The court has agreed to hear petitions against the constitutionality of Basic Law: Israel as the Nation-State of the Jewish People. Since Basic Laws are Israel’s equivalent of constitutional legislation, this challenge to a Basic Law’s constitutionality is incoherent. The court’s agreement to hear this case . . . is tantamount to the claim that nothing is outside its purview, including the constitution itself.

I invite those who are now defending the court to provide an example of a single situation in which the court disapproves of a law or government action but does not—and, in their opinion, should not—have the authority to intervene. Careful: an example where the court chooses not to exercise its authority is insufficient; it needs to be an example where it doesn’t have the authority.

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