Over the past several years, the term "rule of law” in Israel has been turned on its head. Rather than denote the dispassionate enforcement of duly promulgated laws, it has come to mean what President Reuven Rivlin once referred to as the tyranny of the "rule of law mafia,” that is, the rule of unchecked lawyers.

Israel’s Basic Law: Knesset defines the Knesset as the sovereign. That is because the public elects its members in national elections. Members of Knesset in turn, elect the government as the executive arm of the people’s will. That is how it works in democracies. The parliament legislates laws. The executive implements policies in accordance with the law and the mandate it receives from the public at the ballot box. The job of the judicial branch is to interpret laws.

Over the past several years, and with growing intensity in the past four years, the authority of the Knesset to promulgate laws has diminished. The combined forces of the attorney-general and the justices of the Supreme Court have seized not only the power to abrogate laws and interfere with the legislative process, but to dictate laws through legal opinions and judgments. The same goes for executive power. Not only have the justices and attorneys arrogated to themselves the power to cancel government decisions and policies, they have also asserted the power to dictate policies to the government.

Through these acts of the legal fraternity, the powers of Israel’s elected officials have been whittled down. This week we learned that Supreme Court president Esther Hayut has quietly empaneled a forum of 11 justices to determine the legality of Basic Law: Israel as the Nation-State of the Jewish People.

In Israel, Basic Laws are essentially the constitutional foundations of the state.

If Hayut goes through with adjudicating petitions against the law, even if the justices rule that the Basic Law is legal, by claiming the power to adjudicate a Basic Law, the justices will seize the power to undermine the foundations of the state.

The Law of Return, which is the anchor of Jewish peoplehood and the ingathering of exiles, has long been a red flag for post-Zionist radicals who reject Israel’s right to exist as a specifically Jewish state. There is every reason to believe that if the justices seize the power to undermine Basic Laws, they will not hesitate to go after the Law of Return.

Watching this dangerous trend of events, I have used my position as a columnist to warn the public about what is happening and to empower Israel’s politicians to fight for their powers. If Israel is to maintain its democracy, our elected officials must be empowered to challenge the legal fraternity and restore to the Knesset the sole power to legislate laws.

Given the gravity of the situation, the disputes over Israel’s borders, its energy policies, its immigration policies, its economic policies and its military policies become secondary concerns. The key question that hangs in the balance today is whether the Knesset will restore its power as the repository of the people’s will in accordance with law or will it become a mere debating society with the actual power to determine Israel’s future devolved entirely to bureaucrats ruled by a handful of unelected lawyers and judges? Because if the latter happens, the people will lose all ability to determine the outcome of every other aspect of national life.

Posted by: Timothy Birdnow at 11:54 AM | No Comments | Add Comment
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