It’s not the Supreme Court’s job to fix the Nation-State law

With no constititonal framework to establish how the branches of government work together, Basic Laws are of the people

Illustrative: Israeli Supreme Court justices at a hearing on March 13, 2019. (Yonatan Sindel/ Flash90)
Illustrative: Israeli Supreme Court justices at a hearing on March 13, 2019. (Yonatan Sindel/ Flash90)

The legislation of the Basic Law on Israel as the Nation-State of the Jewish People was a grave mistake. However, now that the law is on the books, we believe that a decision by the Supreme Court to strike it down would be a grave mistake as well. This Basic Law is at the heart of serious ideological and political controversies on the vision of Israel and on the question of which institution should decide on the content of this vision. The questions it raises should be debated in Israel’s political and civil society, and should not be decided by the Supreme Court.

In 2013, Ruth Gavison (one of this op-ed’s authors) submitted a report — commissioned by then-minister of Justice Tzipi Livni — on the question of devising and anchoring a vision for the State of Israel in a Basic Law. In the report, Gavison states that she does not support “the constitutional anchoring of the vision of the state in general, and especially the enactment of a Jewish nation-state basic law.” While Livni requested the report on behalf of PM Benjamin Netanyahu’s third government, during the time of Netanyahu’s fourth government, the majority in the Knesset passed the Basic Law: Israel as the Nation-State of the Jewish People. Now, after several petitions were submitted to the Supreme Court requesting it to strike down the basic law, the question as to whether the Supreme Court should actually do so is an important one.

In our view, striking down the Basic Law (or part of it) would be a grave mistake; moreover, the discussion on the merits of the arguments for and against the substance of the Basic Law during the process of reviewing its constitutionality would be mistaken. Israeli public law provides the Supreme Court with a doctrine known as “non-justiciability” that allows for the dismissal of petitions submitted to it without writing a judgment on their merits. This doctrine is designed for petitions with political and ideological questions at their center. Using this prudential doctrine of non-justiciability allows the Court to avoid petitions that might create societal tensions or hinder the Court’s institutional position. There are three arguments that support our view.

First, striking down Basic Law: Israel as the Nation-State of the Jewish People would be a precedent: for the first time, a Basic Law (or part of it) that has a constitutional status would be annulled by the judiciary. During the 1990s, the Supreme Court established that Basic Laws endow the judiciary with the power to strike down “regular” Knesset legislation. This line of adjudication is known as the “constitutional revolution.” The Court also gave Israel’s Basic Laws a special status as part of Israel’s incomplete constitution. The petitions against Basic Law Nation-State raise a new question: does the Israeli Supreme Court even possess the additional authority to strike down Basic Laws? The judicial creation of this controversial authority is akin to creating something out of nothingness, and will surely result in escalated clashes between the Court and the Knesset. Some may insist that such a ruling means that the Knesset lacks the authority to make certain constitutional changes. While we share the view that democracy is more than majority rule, giving the authority to the Court to strike down Basic Laws conflicts with core principles, such as democratic rule and separation of powers. In view of the absence of a full formal constitution in Israel and the ongoing controversy about the “constitutional revolution,” claiming the power to strike down Basic Laws would be truly radical. If the Court adopts the non-justiciability argument in this case, it can avoid the difficult question of whether it holds the authority to strike down Basic Laws.

Second, the debate over Basic Law: Nation State is focused on a vision for the identity of the State of Israel. That should not be decided by a court. Israel’s Basic Laws, insofar as they substitute for a full constitutional document, deal with the core issues of the state: its vision, the authorities of the different branches, and human rights. These issues are, at their core, political issues. They are not only political in the sense that they are hotly debated among political parties. Rather, they are also political in the foundational sense of the term, as they deal with ideological issues that stand at the core of the polity’s constituting foundations. Even if one accepts the idea that “everything is justiciable,” one should still realize the difficulty of the idea that the Supreme Court would scrutinize parts of the Israeli constitution that deal with its core identity issues. The democratic epoch began with the idea that the people — and not a king (not even a philosopher king) — would control their destiny, the way in which they are ruled, or their self-determination.

Before the 1990s — in the era before the Supreme Court ruled that everything is justiciable — there was no need to explain that the Supreme Court lacks expertise or relative advantage in issues such as Israel’s identity. However, we must now emphasize that the Supreme Court is not the proper forum to examine and annul the constitutional formulation of Israel’s identity, as it was determined by the Knesset. Judges have great expertise in classical legal fields, including contract law, criminal law, and evidence law. We do not dispute that legal doctrine requires discussing values. Indeed, recent years have seen values become much more prominent in the Court’s doctrinal analysis, due to much contested addition of vague concepts — such as good faith, reasonableness, and proportionality — to classical doctrinal discussions. And yet confronting and deciding Israel’s vision is a further step that is beyond the professional training and expertise that the judges have acquired. It is no surprise then that the Supreme Court has consistently avoided developing a rich theoretical analysis that might allow it to use the formula “Jewish and democratic” to interpret Israel’s vision. Heated debates on Israel’s vision have been conducted elsewhere, in more appropriate arenas.

Third, there are various negative implications for a judgment on the merits of the arguments against Basic Law: Nation State, even if the Supreme Court’s final ruling were to dismiss the petitions. In our view, the consequences of the mere engagement of the Supreme Court with the debate over the Basic Law would be dire. The judgment would be interpreted as a public and moral approval of the Basic Law, even if the judges emphasized that they were merely focused on the question of whether the Basic Law passes legal scrutiny. More petitions against other Basic Laws would follow, bringing to the Supreme Court other foundational questions. Deciding these questions would increase the polarization in Israeli society and the Court would continue to lose its power as an institution that the entire public can rally around. Before the current era, in which every public dispute arrives to the Supreme Court, and before the constitutional revolution, the Court had a central role in the Israeli mamlachtiut (statism). The Court’s role was indeed modest, as it focused on interpreting doctrinal law, while limiting its discussion on values that were not necessary for its rulings. But it nonetheless served as a symbol of cohesion and civil pride. Unfortunately, since the Supreme Court adopted and promoted the constitutional revolution, as well as other moves that expanded its power, many in the Israeli public view it as supporting one political camp or as imposing its own values on society at large. In view of this situation, the Court would benefit from dismissing the petitions without discussing the substantive arguments for and against the law, and without endowing itself with the authority to strike down constitutional amendments.

The non-justiciability doctrine was designed to allow the Supreme Court to avoid deciding petitions that deal with issues in which judges lack expertise, or highly political issues, or issues that may erode the Court’s institutional capital. All three factors are relevant to the petitions against Basic Law: Nation State, and it is our view that the Supreme Court would be wise to dismiss the petitions for lack of justiciability. No doubt that such a decision would disappoint many who wish to see a judicial remedy to the mistake made in legislating Basic Law: Nation State. However, dismissing the petitions based on non-justiciability would make clear that judicial decisions cannot replace public debate on legislating and amending Basic Laws. Avoiding a decision on this Basic Law, which is focused on symbolic statements on Israel’s identity, would also allow the Court to preserve its power to confront non-symbolic looming threats to the democratic regime.

We can only hope that, in the end, a viable public debate will lead to the legislation of a full constitution for the State of Israel. Such a constitution needs to be designed in a fashion that will create a full constitutional framework for the state identity and the checks and balances between the legislature, the executive branch, and the judiciary. A full constitutional framework would allow for a discussion of foundational controversies, without focusing solely on the issue of the Supreme Court’s powers. Currently, every discussion on a substantive constitutional issue is immediately connected to the unresolved controversy on the relationship between the Knesset and the Supreme Court. As a result, the public consensus on the institutional framework to decide controversies, which in the past was undisputed, is now eroding. It is vital that the relationships between the three branches be defined clearly, and that the discussion be a matter of national consensus before we can use the Court to adjudicate the substantive disagreements between us.

Dr. Or Bassok is an Assistant Professor of Constitutional Law at the University of Nottingham, UK; Professor Ruth Gavison, an Israel Prize winner for her legal research, is an emeritus professor of law and holder of the Haim Cohen chair for human rights at the Hebrew University of Jerusalem.

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