My heart goes out not only to the refugees who arrive in Israel seeking a haven from persecution, but also to those who migrate here and to other countries in search of work. We keep hearing about the cruel fate of people whose only sin was to try to escape despair. The bodies of those who drowned in the attempt float at sea, while the lucky ones are seen around the world stretching their thin arms out and begging for a piece of bread. On Tuesday, the High Court of Justice once again struck down a key provision in the anti-infiltration law, citing its lack of proportionality. But it is the court, in its successive rulings on the matter, that has disproportionately used the term "proportionality." What about the concept of sovereignty? What about the human and civil rights of the locals? What about democracy? What about the rule of law? The High Court tends to intervene on behalf of the people when the government's actions are unreasonable, extreme or excessive -- even if the government has acted within its legal prerogative. But successive High Court rulings on the asylum seekers are all over the place. In each one of its three separate rulings, the court tried to define what proportionality really is. It has done so by relying on legal positivism, a theory that often equates norms with laws. On Tuesday, it said that incarcerating someone for 12 months is proportional. But why 12 and not 13? What about speed limits, the width of crosswalks, tax rates or the length of compulsory service in the Israel Defense Forces? Are those all proportional? Those who are tasked with setting this standard are politicians,often referred to as "elected officials." This is what democracy is all about. After the first time in which the U.S. Supreme Court struck down a law passed by Congress (in the landmark case Marbury vs. Madison of 1803), former President Thomas Jefferson criticized the justices' behavior. "Certainly there is not a word in the Constitution which has given that power [to void a law] to them [the judiciary] more than to the executive or legislative branches," he wrote in 1815. Israel's law books do not grant the courts this power either. At its most fundamental level, the rule of law means following laws of the Knesset. But in a country where laws are being struck down right and left because they fail to meet some amorphous standard called "proportionality," there is doubt as to whether the rule of law actually exists. The phrase, "There are judges in Jerusalem," is attributed to the late Prime Minister Menachem Begin, who revered the court. This phrase now needs modification: There are some judges in Jerusalem who are never held accountable to their decisions and they believe they have unlimited powers. The elected officials, on the other hand, are held accountable but their powers are undefined. The High Court of Justice has once again delivered a blow to democracy and the rule of law. No other country has let its judiciary act this way -- be it on illegal migration or on other matters. Prof. Avraham Diskin is a lecturer in the Shaarei Mishpat Academic Center and a senior member of the Kohelet Policy Forum.
