Judicial Activism & the Chareidi Draft

T he Supreme Court recently nullified a Knesset law that grants chareidim IDF draft exemptions. What legal grounds do they have to invalidate a law passed by Israel’s parliamentary body?

Let’s begin with a short civics lesson. Israel became a state in 1948. Faced with a war the Constituent Assembly — the forerunner to the First Knesset — agreed to draft a constitution in stages starting with a package of basic laws. Israel still has no constitution but it does have 13 basic laws. One of them is the law of Human Dignity and Liberty passed in 1992 defining Israel as a Jewish and democratic state and protecting individual freedoms of speech privacy and travel. The Supreme Court took this basic law one step further applying it to safeguarding “human rights.”

That still doesn’t answer the question as to how the Supreme Court can throw out a law the Knesset passed.

We haven’t finished the civics lesson. Legal experts agree the Knesset has a dual function. It serves as a legislative body making and changing laws that impact daily life in areas such as national defense and the economy. It also serves as a “constitutional assembly ” making basic laws similar to America’s Bill of Rights. What happens when those two functions clash? Well in 1995 Supreme Court Chief Justice Aharon Barak ruled that Israel’s basic laws have supremacy giving the court the authority to revoke a legislative law that clashes with the principles of a basic law.