Justice Minister Ayelet Shaked, June 2018.Meged Gozani
Israel’s Justice Minister Warns of ‘An Earthquake’ if Top Court Kills Nation-state Law
The High Court has never been conclusive on whether it has the authority to overrule a Basic Law – the controversial nation-state law might be the litmus test
Revital HovelNoa Shpigel
05.08.2018 | 22:21 10 comments
Justice Minister Ayelet Shaked on Sunday addressed for the first time the possibility that the High Court of Justice could overturn the nation-state law, saying, “Such a move would be an earthquake, a war between the authorities.”
Shaked made the remarks in an Army Radio interview, during which she explained that she didn’t believe the High Court had the authority to disqualify Basic Laws.
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“The High Court justices are very serious and professional people,” she said. “The Knesset is the constituent assembly, which defines and determines the Basic Laws. They have to interpret the laws in accordance with the Basic Laws, and I don’t believe a majority on the Supreme Court will decide to take such a step.”
About the possibility the High Court of Justice would overturn the law, she said, “I very much hope that this doesn’t happen and I don’t believe it will happen. This particular law has nothing revolutionary in it. It contains the values on which the state was founded, values of settlement, immigration, and national identity. There is a consensus about these values.”
During the interview she reiterated her support for the nation-state law. “Over the years, the court has given great weight to the democratic value, to the values of equality, and I think that in certain cases, this came even at the expense of national values. The nation-state law comes to give the High Court of Justice a tool to take national [values] into account, too,” she said.
The justice minister also referenced the outcry against the nation-state law and said that the law does not harm minorities, but explained that action should be taken to “deal with the pain of the Druze community.” There is no need, she said, “to categorize them as leftists or as those who want to undermine the government.”
The High Court of Justice will have to deal with the nation-state law due to petitions that have been or are planned to be filed against it. The first such petition was filed by Druze MKs Akram Hasoon, Hamad Amar and Saleh Saad, and the first hearing on it is scheduled for January. Another petition was filed by the Meretz party, while on Monday representatives of the Bedouin communities in the north and south plan to file an additional petition. A fourth petition is expected to be filed by Adalah – the Legal Center for Arab Minority Rights and the Association for Civil Rights in Israel.
The question of whether the High Court of Justice can overturn Basic Laws has come up over the years but has never been decided. The first intervention by the High Court in a Basic Law was in the case of an amendment to the Basic Law on the State Economy, which allowed the drawing up of two-year budgets, but which violated a different Basic Law, which states that the Knesset will approve the budget once a year. In 2017, an expanded panel of High Court justices ruled that the Knesset could not pass a two-year budget as an emergency measure. In this case, at issue was a temporary law, and the reason for disqualifying it was that the Knesset had abused its authority.
In its decision this year to dismiss petitions against the Impeachment Law, the justices addressed the possibility of voiding a Basic Law on grounds that it was unconstitutional, but did not decide on the issue. Supreme Court President Esther Hayut said that until all the Basic Laws are passed that are meant to complete the state’s constitution, “there is considerable difficulty” with the High Court overturning Basic Laws, even though high courts all over the world have recognized their right to disqualify amendments to a constitution. Justices Uzi Vogelman and Menachem Mazuz expressed a similar opinion.
However, in the ruling last year on the issue of the two-year budget, Deputy Court President Hanan Melcer listed some grounds for disqualifying a Basic Law, for example, “if it deviates significantly from the most basic foundations of the values of the state and the people, or of the prevailing legal system.” In parenthesis, Melcer wrote the following: “For us this could be applied, for example, to the essence of Israel as a Jewish and democratic state.”
Justice minister warns of ‘earthquake’ if High Court overturns Jewish state law
Ayelet Shaked says top bench does not have the authority to strike down controversial legislation passed as quasi-constitutional Basic Law
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Justice Minister Ayelet Shaked at the Supreme Court hall in Jerusalem on August 2, 2018. (Marc Israel Sellem/Flash90)
Justice Minister Ayelet Shaked warned of an “earthquake” if the High Court of Justice moves to overturn the controversial nation-state law.
Shaked also told Army Radio on Sunday that she did not believe the High Court has the power to strike down the legislation on constitutional grounds, because it was passed as a Basic Law, the constitutional underpinning of the Israeli justice system.
“Such a move would cause an earthquake between different authorities,” Shaked told the radio station when asked about possible judicial intervention over the law.
At least three petitions have been lodged with the High Court since the law was passed on July 19, demanding that justices overturn the law over its alleged discrimination.
“High Court justices are very serious and professional people,” Shaked said. “The Knesset is the constituent assembly, which defines and determines the Basic Laws. [The justices] have to interpret the laws in accordance with the Basic Laws, and I don’t believe a majority on the Supreme Court would take such a step.
“I very much hope this doesn’t happen, and I don’t believe it will,” she added.
For months Shaked, along with Jewish Home chairman Naftali Bennett, has been attempting to advance legislation broadly limiting the High Court’s circumvention power, but has made little headway despite having Prime Minister Benjamin Netanyahu’s support.
Shaked in her Sunday interview reiterated her support for the law, which has been increasingly criticized as discriminatory against Israel’s non-Jewish minorities.
Druze protesters at a demonstration in Tel Aviv against the nation-state law, August 4, 2018. (Luke Tress / Times of Israel staff)
“There is nothing revolutionary in this specific law,” she said. “It contains values that the state was founded on, values of settlement, immigration and national identity,” she said. “There is consensus about these values.”
The nation-state law enshrines Israel as “the national home of the Jewish people” for the first time, and says “the right to exercise national self-determination in the State of Israel is unique to the Jewish people.”
Israel’s 1948 Declaration of Independence defined the state as a Jewish and democratic one. The Netanyahu government says the new law merely enshrines the country’s existing character, and that Israel’s democratic nature and provisions for equality are anchored in existing legislation.
Supreme Court Justice Salim Joubran, December 16, 2014. (Isaac Harari/Flash90)
But critics, both at home and abroad, say it undermines the constitution’s commitment to equality for all its citizens. It has prompted particular outrage from Israel’s Druze community, whose members say the law’s provisions render them second-class citizens.
In its petition to the court, the left-wing Meretz party said the law contradicts a previous basic law passed in 1992 that guarantees “human dignity” for all citizens of Israel.
Representatives of the Druze and Bedouin communities have also petitioned the court to overturn the law.
Last week, retired Supreme Court judge Salim Joubran spoke out against the “unnecessary and bad” law. In an Israel Radio interview, Joubran said the law creates “a superior class and an inferior class,” and called for it to “nullified as quickly as possible.”
On Sunday, Netanyahu defended the law as “vital” for ensuring that “Israel will remain the Jewish nation-state for generations to come.”
Pushing back against the weeks of Druze-led protests against the law, Netanyahu insisted that “no one has harmed or intends to harm individual rights.”
Protesters wave Israeli and Druze flags at a demonstration against the nation-state law, in Tel Aviv’s Rabin Square on August 4, 2018. (Luke Tress / Times of Israel staff)
More than 50,000 Israelis, waving Israeli and Druze flags and calling for equality, gathered at Tel Aviv’s Rabin Square on Saturday night to demonstrate against the law. Leaders of the Druze community were among the key organizers of the demonstration.
Beyond angering the Druze, the law has sparked widespread criticism from Israel’s other minorities and opposition parties, the international community, and Jewish groups abroad.
The law also downgrades the Arabic language from official to “special” standing, but cryptically stipulates that “this clause does not harm the status given to the Arabic language before this law came into effect.”
Shaked warns of ‘earthquake’ if Israel’s top court quashes nation-state law
GALI TIBBON (AFP/File)
Justice Minister Ayelet Shaked on Sunday warned of an “earthquake” if Israel’s High Court of Justice struck down the widely-contested Jewish nation-state law.
In an interview with Army Radio Shaked explained that she did not believe the court had the authority to constitutionally quash the legislation given it was passed as a Basic Law.
“High Court justices are very serious and professional people,” she said. “The Knesset is the constituent assembly, which defines and determines the basic laws. [The justices] have to interpret the laws in accordance with the basic laws, and I don’t believe a majority on the Supreme Court would take such a step.”
The highly-controversial nation-state Basic Law passed on July 19 by a 62-55 margin in parliament last week, speaks of Israel as the historic homeland of the Jews and says they have a “unique” right to self-determination within its borders.
Israel, which lacks a traditional constitution, holds its basic laws as preeminent, as they are meant to guide the judiciary and require a supra-majority in parliament in order to be overturned.
“I very much hope this doesn’t happen, and I don’t believe it will,” Shaked added about the possibility of an court intervention. “Such a move would cause an earthquake between different authorities.”
JACK GUEZ (AFP)
Shaked continued to defend the law which has received a barrage a criticism from non-Jewish minorities within Israel, Arab leaders and other international figures.
“There is nothing revolutionary in this specific law. It contains values that the state was founded on, values of settlement, immigration and national identity. There is a consensus about these values,” she told Army Radio.
The law’s backers say it strengthens the state’s status as a homeland for the Jewish people and note it was backed by a slim majority of the country’s lawmakers. Polls published earlier this week found that just over half of voters support the legislation.
Arab citizens, who make up some 17.5 percent of Israel’s more than eight million population, have strongly criticized the law, particularly those from Israel’s 150,000-strong Druze community, who, unlike other Arabs who may volunteer, are subject to compulsory service in the military or police alongside Jewish Israelis. Israel’s Druze, however, feel the law has legally marginalized their civic identity.
Two clauses of the law have drawn particular concern: one which demotes Arabic from an official language of the state to one with “special status”; and another which encourages the promotion of “Jewish settlements”.
In order to quell backlash against the law, Netanyahu’s office has proposed three additional laws that would establish the special status of the Arab minority communities in Israel, in particular the Druze and Circassian populations.
Amid the criticism, Shaked said that the law does not harm minorities but added that measures should be taken to “deal with the pain of the Druze community.” She added that there was no need “to categorize them as leftists or as those who want to undermine the government.”
Her comments followed on from a proposal announced by Prime Minister Benjamin Netanyahu that he would form a special ministerial committee to “honour that bond” with the Druze community.
“No one has harmed them [the Druze] and no one intends to harm, but without a nation-state law it is impossible to fortify Israel’s status as a Jewish state,” he said whilst addressing his weekly cabinet meeting on Sunday.
Since the laws’ passage, the High Court of Justice has received three petitions urging the body to quash the law given its discrimination.
On Saturday 50,000 people gathered in Tel Aviv’s central Rabin Square to express their opposition to the law. Protesters united under the banner of preserving the importance of the democratic character of Israel, which has come under question for many since the laws passage.