I listened to Knesset Speaker Yariv Levin's hair-raising response to a High Court ruling on the insufferable ease with which Basic Laws can be changed for the sake of political expediency, and I lost my mind. What do ordinary people, especially their children, think when they hear the man who symbolizes the legislative branch tearing into the people who symbolize the judicial branch, calling them "a bunch of six people who come in cloaked in the law to carry out a change of government"?
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Israel does not have a constitution. A decision submitted on June 13, 1950, decided that the first Knesset would charge the Constitution, Law, and Justice Committee with preparing a draft constitution for the country, to be constructed one clause after the next, each one comprising a Basic Law in and of itself.
Since then, the Knesset has passed Basic Laws, intending them to become part of a future constitution. When the Supreme Court, meeting as the High Court of Justice, is asked to debate the legality of a certain law or part thereof, it examines whether the law does or does not contradict any Basic Laws. The more it looks for contradictions, the more "activist" it is seen to be, and it's important to know that the Supreme Court's intervention in the legislative process is actually extremely minor.
In recent years, certain coalitions have been shrewd and passed legislation called "Basic Laws" but which have nothing to do with any future constitution, hoping that the title would make them proof against any intervention by the High Court. This week, the court – quite justifiably – ruled that labeling a piece of legislation a "Basic Law" would not provide cover for anyone who was seeking to tamper with the orderly process of passing the state budget.
There is tension between the Knesset and the judicial branch. The relationship between the two needs to be codified through the Basic Law: Legislation, many drafts of which have been presented to the legislative branch. The law addresses issues such as which laws can be called Basic Laws (the most important law in Israel, the Law of Return, is not a Basic Law!); what majority is needed to pass Basic Laws; how Basic Laws affect regular laws; the authority of the Supreme Court to cancel them; and more. So the Knesset will be the one to decide on the process of passing and/or cancelling Basic Laws, and the court will be able to act within the framework of the new Basic Law, and everything will work out fine.
There is also a solution to the Sheikh Jarrah crisis. The same court, which is so slandered by the Right, is now being asked to rescue the government from the mess. Rulings by lower courts to evict the Palestinian residents of the disputed properties led to major tension in Jerusalem, and were a reason or an excuse for rocket fire on the city.
Once again, the court is being asked to save a government that is incapable of making decisions. Jordan built a few structures in east Jerusalem on land that belonged to Jews who were forced to leave Israel after the 1948 War of Independence. The Jordanian government put a few Palestinian families in those buildings in 1956, on the condition that they would retain their refugee status, and that is what happened. When the West Bank was occupied in 1967, and Israel applied sovereignty to east Jerusalem, the Jewish owners came and asked the court to confirm their ownership of the properties, and evict the residents.
This created a complicated problem: on one hand, Israeli law, which applies in east Jerusalem, allows Jewish property owners to demand it back. On the other, the law prevents Arabs who own property in Israel from doing the same thing, and therefore comprises blatant discrimination.
It was Judge Meni Mazuz who proposed a solution: that Israel would use its rights to confiscate the area and compensate the purchasers of the land and allow the current tenants to go on living there. It would be best if this action were taken before the Supreme Court rules and before Itamar Ben-Gvir tries to set up his parliamentary offices there, lighting up the Middle East.
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