Photo Credit: Yonatan Sindel/Flash90; Zvi Oron-Orushkes
Justice Yitzhak Olshan, second President of the Supreme Court of Israel (l), vs. Justice Aharon Barak

To support their daring for the first time to entertain revoking a basic law, which is considered an article of Israel’s ever-growing constitution, several Supreme Court justices attempted to use the May 1948 Declaration of Independence as the instrument with which they could strike basic laws.

It turns out one of the Supreme Court’s earliest decisions included a rejection of the Declaration of Independence as a constitutional document.


The argument goes: traditionally, the court decides whether to strike a law based on its adherence to the basic laws. This has to mean that the court is not allowed to even try to strike basic laws, since they are constitutional, and there are no higher laws to which they may be compared.

This argument has held for 75 years, but in the 76th year, the Netanyahu government passed an amendment to the Basic Law: The Judiciary, which restricted the court’s jurisdiction over government actions, such as controversial appointments. The Knesset told the court it could no longer apply the extreme-unreasonableness clause to annul such actions. The court could still apply several other considerations to kill the action, but not that one.

Former Supreme Court President Aharon Barak, the leader of the court’s 30-year crawling takeover of governmental powers, aided and abetted the judges in an August 17 article he published in Haaretz (where else) suggesting Israel’s Declaration of Independence is the higher constitutional document against which the judges can evaluate basic laws.

And so, during the court’s unprecedented, 13-hour session, several judges repeated this notion of using the Declaration of Independence as a constitution, an assertion the government’s representatives rejected forcefully (Attorney Ilan Bombach suggested that since the declaration was empowered by the 1947 UN resolution, perhaps we should use that one instead).

In July 1948, in the case of Ahmed Shuki Al-Karbutali v. Minister of Defense, the petitioner demanded the release of his friend, Haj Ahmed Abu Laban, from administrative detention based on the item in the Declaration of Independence promising that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”

Justice Yitzhak Olshan rejected the appeal based on an earlier court ruling (Ziv) which he interpreted to mean that, “The court did not accept the argument that this document (the declaration) constitutes the constitution, in whose light the validity of laws must be examined, before the Constituent Assembly decides on a fundamental constitution of which the declaration itself speaks.”

Mind you, Barak’s biggest argument is the fact that the declaration declares an intent to pass a constitution, and so, by extension, it should be taken to be the natural placeholder for the constitution.

This is, of course, drivel, not according to me, but according to the Israeli Supreme Court ruling of July 1948.


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