The Legal Forum
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Separation of Powers – The Fundamental Basis for True Democracy

On Monday September 22 the Israeli Supreme Court struck down key sections of the Infiltrators Law that made it possible to detain illegal immigrants without trial for up to one year. Immigration worldwide is on the rise and Israel is the nearest western address for illegal infiltrators.

Israel has been left without any defense against the renewed waves of immigration from the Egyptian border. Beyond the probability of the serious damage that will be caused to Jewish demographics, to the security and economy of the State of Israel, the Supreme Court Justices chose to once again waiver the public’s confidence in the legal system.

The Supreme Court will once again be perceived as an elitist unit which is disconnected from the people and lives by its own set of standards. In a democratic state the public’s confidence in its legal system is of the utmost importance. Attorney Idan Abuhav from the Legal Forum for Israel has been closely involved with the issue of illegal infiltrators has stated in an article published in one of Israel’s major newspapers: “Repeal of the law is in my opinion blow to democracy. Firstly, the law was amended following the cancellation of the first law.

The Supreme Court is expected to respect the government and the Knesset, who acted in accordance with the guidelines from the first verdict, and deny the petition. Mutual respect is one of the foundations of the principle of separation of powers. Secondly, the government and the Knesset were elected in a democratic process which represents the will of the people, the majority of which wish to see illegal infiltration curbed and a Jewish majority”.

The government and the Knesset can act with democratic tools in order to rescind the results of the law being overturned by legislative measures, aimed at limiting but not completely eliminating the Supreme Court’s ability to overturn bills, as was suggested by Two former Justice Ministers some time ago.

The Legal Forum has been working with MK Yariv Levin and MK Ayelet Shaked to advance an Amendment to the Basic Law of the Judiciary by adding a clause which will define the balance of power between the Knesset and the Supreme Court. According to the bill proposal, the Supreme Court will be able to determine that the law will be valid for six months. During this time the Knesset can either accept the Supreme Court’s position and cancel the law, amend the law, or leave it in place for five years.


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