Judicial Dictatorship for all to see – Israel’s Supreme Court Ignoring the Law

by Avi Abelow

In its recent efforts to stop the government from enacting any judicial reform, even tiny, inconsequential changes like minimizing the reasonableness clause, Isreal’s Supreme Court is trying to legally turn part of Israel’s Declaration of Independence into a constitution!

That is just an insane concept that highlights the over reach of the court, and emphasizes the need for judicial reform so that, finally, the Supreme Court would also have checks and balances to ensure a functioning democracy.

Israel’s Declaration of Independence is our Declaration of Independence, which did exactly that – it declared our independence! It does not mention the word democracy and it does not contain the word “constitution” and there was no intent for it to be a constitution. Yet, today’s justices are using this hearing to de facto turn parts of it into a constitution, hence somehow making them all-powerful and giving them the legal power to cancel basic laws. That is a serious legal acrobatic maneuver.

In a Hebrew facebook post, it was actually highlighted that back in 1948 the Israeli Supreme Court already ruled that the Declaration of Independence cant be treated as a constitution, highlighting that today’s justices are acting against an existing Supreme Court ruling.

The following is the English translation of the post:

The latest spin from the justice system, about how the Declaration of Independence really is Israel’s constitution, is making an impact, so it’s worth digging a little deeper: In truth, the one who stated that the Declaration of Independence has no constitutional validity is the Supreme Court, in one of the first rulings after the establishment of the state back in 1948:

This ruling was repeated over the years and made it clear – that the Declaration of Independence is Israel’s “I believe” document, but it is not a constitutional source.

In the recent Supreme Court session, the government’s representatives repeated this fundamental principle, that the Declaration of Independence is not a constitutional source. They did not invent anything new by saying this.

So why is it being discussed again by the Supreme Court? Because former Supreme Court justice Aharon Barak is today trying to help the opponents of the judicial reform (helping? or actually instructing the judges) to find the legal basis for the Supreme Court to cancel basic laws. He published an article two weeks ago explaining that the Declaration of Independence is the “will of the people” and therefore gives the Supreme Court the power to override basic laws.

How does he reconcile this with the Supreme Court ruling from 1948? he is not. Why? Because he has no way.

But wait, why does Barak need to make such a claim, which contradicts the 1948 ruling of the Supreme Court, in order to give Supreme Court the authority to cancel basic laws?

Because the Supreme Court has no such power. Barak is making legal acrobatics in the air and ignoring the 1948 ruling because he knows there is no legal way for the Supreme Court to cancel basic laws, since no authority was given, and it takes a lot of hocus pocus to create the reality that the Supreme Court does have the legal power to do so.

Now pay attention to Barak’s claim: He is trying to establish the fact that Israel’s Declaration of Independence, which was presented to a Committee of 30+ people for approval less than a day before it was actually signed and announced to the nation, a document that was written up by 4 people without any public participation, expresses the “will of the people” and therefore prevails over every law of the Knesset, ever.

(Directing questions to Barak and the Supreme Court justices who are trying to establish as fact that the Declaration of Independence is our constitution:

The Declaration of Independence does not say “democracy” – does that represent the will of the people?

The Declaration of Independence writes that it is based on the “vision of the prophets of Israel” – Is the will of the people that the biblical text be the basis for our principles of justice and freedom? The principles of the Bible??

The religious people today would sign on such a document immediately. You wouldn’t!

And again – there are dozens of judicial rulings that the Declaration of Independence is not a constitutional source, so why are Barak and the current justices gnoring it? Because they are acting out of self-interest, with selective thinking and ignoring judicial history.

We deserve an intelligent public debate on this issue. Not what we are currently experiencing from the justices (that is ignoring the actual law)

The Declaration of Independence is our founding document, a monumental historical document that is close to our hearts. A document that embodies a super important shared ethos.

The attempt of the Supreme Court to exploit it for the benefit of a political discussion – ignoring the 1948 ruling of the Supreme Court of Justice instead – is ugly, cynical, and should be condemned in its entirety.

And even more disgusting is the attempt to claim that the “political right” is against the Declaration of Independence.

Enough of that.

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