Prof. Paul Eidelberg
When Israel’s Knesset enacted Basic Law: Human Dignity and Freedom along with Basic Law: Freedom of Occupation in 1992, it was heralded by Justice Aaron Barak as a “constitutional revolution”! At last, he exclaimed, Israel has joined the community of constitutional democracies. Which means that Israel was not a constitutional democracy prior to the passage of those two Basic Laws! If not, what was it?
Perhaps Justice Barak believed that Israel had been on the verge of becoming a theocracy because of the high birthrate of its religious families. It’s true that the driving force behind those two Basic Laws consisted of the most ardent advocates of secularism and religious pluralism. This may explain Justice Barak almost delirious reaction. Never mind that only 27% of the Knesset voted for Basic Law: Human Dignity and Freedom, while only 19% supported Basic Law: Freedom of Occupation! Now the Supreme Court had two Basic Laws that would enable it to pursue its pre-eminently secular agenda.
Since then, and especially since Justice Barak’s became the Court’s president in 1995, the High Court of Justice has handed down a welter of decisions offensive to religious and traditional Jews. To mention only a few examples, the Court has (1) negated decisions of rabbinical courts in matters of religion and divorce; (2) ordered the Minister of Interior to register Reform conversions; (3) directed the Minister of Religious affairs to sign appointments of Reform and Conservative members to religious councils; (4) ordered the return of a girl to a secular school after her father withdrew her; (5) held that forbidding the import of non-kosher meat infringed the right to freedom of occupation!
That at least 80% of Israel’s Jewish population is either orthodox or traditional counts little in the Court’s calculations. The two basic laws in question, passed by absurdly minute percentages of the Knesset’s membership, have fueled Barak’s “constitutional revolution.”
Interestingly, Justice Barak did not appear as a revolutionary in meeting with the Knesset Law Committee. In fact, this former professor of commercial law exuded “political correctness.” Some MKs charged that, since the Supreme Court’s composition does not reflect the make-up of the country, it’s not qualified to determine the country's values as a Jewish and democratic state -- something the Basic Laws virtually force it to do by their constant reference to these undefined values.
Barak evaded the issue. “The solution,” Barak replied, “is that it should be possible to change the constitution [and] this should not require too great a [Knesset] majority.” He admitted that some kind of special majority was necessary, because the Basic Laws are supposed to protect fundamental rights against the whims of a chance majority. But as we have seen, Justice Barak waxed eloquent over the passage of the two Basac Laws mentioned above, even though they were passed by what may be termed the whims of a chance minority!
Barak also said that although the Court must take into account the Knesset's intent when interpreting laws, judges are not infallible. If the Knesset, therefore, disagrees with the Court's interpretation of the law, it should feel free to change the law to overturn the Court’s decision, since the Knesset represents the will of the people. We may ask: Just what does the Supreme Court represent? Justice Barak once boldly said, “the enlightened part of the population,” meaning Israel’s intellectual and cultural elites, the country’s ultra-secularists.
Justice Barak also noted that Israel's constitution (in the form of Basic Laws) is still incomplete. Once completed, however, “it would be a good idea to bring it to the people [for approval]. But if this isn't done, he added, it will not impair the legality [of the constitution]. Which means that the Knesset can go on enacting Basic Laws by minute minorities without affecting their constitutional status.
Barak also made an effort to calm the fears of religious MKs. “A constitution is meant to protect the rights of minorities, both as groups and as individuals,” he said. “I see it as my duty as a judge to defend the religious individual.” It so happens, however, that whenever there is a conflict between religiosity and democracy, the Supreme Court upholds democratic rights in almost total disregard of religious, i.e. Jewish rights.
Nevertheless, the religious MKs said they were surprised and pleased by Barak's support for the Knesset's right to overturn High Court decisions, and for taking the Knesset's intent into account when interpreting laws! Barak must have had to restrain himself to keep from laughing. Evidently, these religious MKs had never studied the all-important Transition Law of 1948, which, in theory, invests the Knesset with absolute power. In fact, unless I am mistaken, the Knesset is the only legislature in the world that is also a constituent assembly!
Nevertheless, such is the fragmented and inept character of the Knesset, that Justice Barak can confidently pursue his increasingly secular agenda.