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How to Understand the Groundbreaking Decision of Israel’s Supreme Court

A view shows Israelis protesting, as Israeli Prime Minister Benjamin Netanyahu’s nationalist coalition government presses on with its judicial overhaul, in Tel Aviv, Israel March 25, 2023. Photo: REUTERS/Oren Alon

In a stunning 8-7 decision, the Israeli Supreme Court struck down the Knesset’s “Reasonableness Law,” a new “Basic Law ” that was intended to limit the court’s ability to exercise oversight over Knesset legislation.

This is the first time in Israeli history that the Court has struck down a Basic Law, meaning that, ironically, the first concrete effect of Prime Minister Netanyahu’s judicial reform efforts have been an increase in the Supreme Court’s powers. And a vast majority of the Supreme Court agreed that justices do have the power to strike down Basic Laws in the future.

Though it may seem less dramatic than the ongoing war against Hamas, hundreds of thousands of protesters recently took to the streets on this very topic, and this Supreme Court decision will impact the lives of Israelis long after the war is over. Here’s what you need to know.

Israel has no constitution

Israel’s lack of a constitution means that its political structure is still evolving. In the United States, the Constitution is the primary legal power and the court system is empowered to strike down any legislation or executive order that violates it as “unconstitutional.” The only way to overrule the US Supreme Court is through a Constitutional amendment, which can be passed only through a “super majority” vote: consisting of 75% of all the state legislatures.

Without a constitution, there can be no such thing as  “unconstitutional.” Instead, Israel has the “Basic Laws,” a set of legislation that governs individual rights and balance of powers: a kind of equivalent of America’s Constitutional amendments but with one key difference — Israel’s Basic Laws can be changed via a simple majority vote in the Knesset.

This means that any coalition which controls the Knesset can theoretically exercise unlimited power, including over the Supreme Court. How then, does Israel’s Supreme Court provide the necessary checks and balances?

For one thing, as part of its decision this week, Israel’s Supreme Court ruled 12-3 that it does indeed have the power to strike down a Basic Law, a fundamental difference from the United States where the Supreme Court is subordinate to the Constitution.

In addition, for years the Israeli Supreme Court has struck down executive orders and administrative decisions that it deems “unreasonable.”  (This does not relate to overturning actual laws, which is done via a different mechanism.)

Prime Minister Benjamin Netanyahu and other proponents of this judicial reform refer to the Reasonableness Standard as an excessive and unstructured power in the hands of un-elected judges. Indeed, the power to define any law as “unreasonable” rather than specifically unconstitutional could allow Israel’s Supreme Court to overstep its proper powers.

Yet the power of the legislature to effectively change the country’s very structure by passing Basic Laws is also excessive. Until now, these two excesses had somewhat sloppily, but effectively, canceled each other out: the very “balance of chaos” that characterizes the miracle of Israeli society.

In March of 2023, Israeli President Herzog suggested a compromise that would limit the Court’s ability to strike down laws based on “reasonableness,” but would also limit the Knesset’s ability to pass Basic Laws without a super-majority vote, thus maintaining the necessary balance of power and moving Israel closer to an American style system. However, the compromise was rejected.

What happens now?

Members of the current ruling coalition have vigorously objected to the Court’s decision, in some cases stating that they would “not accept” it, though it is unclear exactly what action the legislature could take in that regard.

The Court itself is already changing, with some of its members retiring and no clarity as to who will replace them. Similarly, the disastrous intelligence and security failures of October 7 will probably put an end to the careers of many in Israel’s political leadership, though such transitions will likely occur only after the ongoing war is complete.

So there remain a lot of unknowns on the political level as to how this decision will play out in the future, or who will be in power when it does, but one thing is certain: Israel’s Supreme Court has decided by a wide margin that it can, and has demonstrated through its actions that it will, strike down even a Basic Law when the Court feels it is appropriate to do so.

Young Democracy

In its first 100 years, the United States saw the infamous Sedition Act, an actual gun duel between the Vice President and the Secretary of the Treasury, and of course, secession and the American Civil War.

In its first 200 years as an emerging democracy, Britain faced several civil wars and rebellions, as well as the society wrenching Reformation.

At only 75 years old, Israel is actually unusually stable compared to the turbulent early histories of most democracies, Israel’s arguments have been passionate but peaceful, and its laws are still evolving. While it is completely appropriate to feel care and concern over Israel’s evolution, it is not yet time to assume catastrophe.

Daniel Pomerantz is the CEO of RealityCheck, a think tank dedicated to deepening public conversation through robust research studies and public speaking. He previously worked as a lawyer in the United States, including in the field of international law. Daniel lives in Tel Aviv, Israel, where he lectures at Reichman and Bar Ilan Universities, to soldiers of the IDF and the US Marine Corps, and frequently appears on international media. You can learn more about RealityCheck at:

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Newly released documents from the Deschênes Commission show Canada’s reluctance to prosecute Nazi war criminals

The release of formerly classified documents from the 1986 Deschênes Commission—which investigated how Nazi war criminals entered Canada after the Second World War—reveals greater details about why the government was reluctant to prosecute them once they were in the country, says David Matas, the lawyer who represented B’nai Brith Canada at the inquiry. Canada released […]

The post Newly released documents from the Deschênes Commission show Canada’s reluctance to prosecute Nazi war criminals appeared first on The Canadian Jewish News.

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South African Immigrants to Israel Protest Against Former Country Government

The International Court of Justice in The Hague in session in January 2020. Photo: Reuters/Eva Plevier.

Dozens of South African immigrants to Israel protested against their former country’s government on Friday, standing with their new home against political and legal attacks from South Africa’s ruling ANC party, highlighted by accusing Israel of “genocide,” last Thursday in the International Court of Justice (ICJ)

“The demonstration is not against South Africa or its people, but against its disgraceful government. I am proud to stand here as an Israeli, but I am ashamed of the government of my homeland, for stooping so low. It is a danger to Judaism,” said David Kaplan, an attendant of the event.

Former Knesset member Ruth Wasserman Lande, who was raised in Cape Town, South Africa before moving to Israel for military service, living in Israel since, added “Justice is with us, the ruling party of South Africa has sold its soul to Iran.”

The protest in Ra’anana in central Israel comes a few weeks after Israel was forced to stand trial at the International Court of Justice in The Hague against charges of “genocide” in its current defensive war against Hamas in Gaza. The charges were filed by South Africa’s government, a noted friend of Hamas leadership and outspoken critic of Israel and the Israeli government.

In South Africa’s case against Israel, the country alleges that the IDF is acting “genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.”

The suit came as both countries are signatories to the 1948 Genocide Convention, passed after the Holocaust and with the goal of creating proceedings to ensure no genocide like what happened to the Jews of Europe occurs in the future.

Israel said South Africa was acting as “the legal arm of Hamas,” and called the charges “baseless,” especially as the country has been noted to take unprecedented steps to protect civilians in the war. Furthermore, the war began after Israel was attacked by Hamas terrorists on October 7, when they invaded southern Israel, murdering more than 1,200 and taking hostage over 240.

The ICJ refused to grant South Africa’s wish of calling for an immediate ceasefire, but nevertheless ruled to investigate the genocide charges and called on Israel to “take all measures within its power to prevent the commission of all acts within the scope of [genocide].”

Even this past week South Africa continued its attacks, calling for the defunding of Israel, with Foreign Minister Naledi Pandor saying “This necessarily imposes an obligation on all states to cease funding and facilitating Israel’s military actions.”

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Robert Kraft Antisemitism Nonprofit to Air Super Bowl Ad Featuring Associate of Dr. Martin Luther King Jr.

New England Patriots quarterback Tom Brady and team owner Robert Kraft celebrate winning Super Bowl LIII, Feb. 3, 2019. Photo: Reuters / Kevin Lamarque.

Foundation to Combat Antisemitism (FCAS), a group created by New England Patriots owner Robert Kraft, will air its first Super Bowl commercial when the San Francisco 49ers take on the Kansas City Chiefs on Feb. 11.

An estimated 100 million television viewers will see the commercial, which features Dr. Clarence B. Jones, a former legal adviser of civil rights hero Dr. Martin Luther King Jr. Jones, according to FCAS, helped King draft the famous “I Have a Dream” speech, which was delivered on the steps of the Lincoln Memorial in Washington DC on Aug. 28, 1963.

“I know I can speak for Dr. Martin Luther King Jr. when I say without a doubt that the Civil Rights movement (including the passage of the Civil Rights and Voting Acts) would not have occurred without the unwavering and largely unsung efforts of the Jewish people,” Jones said in a press release issued by FCAS. “With hate on the rise, it is as important as ever that all of us stand together and speak out. Silence is not an option. I’m glad that I’ve lived long enough to partner with Robert Kraft and FCAS to continue to spread the message to the widest possible audience — the Super Bowl.”

This year’s Super Bowl commercial mark’s FCAS’ biggest push to promote awareness of antisemitism since its founding in 2019. Last year, the nonprofit launched a $25 million multimedia campaign, which asked supporters to use the “Blue Square” emoji available on iOS devices in their social media posts.

FCAS has undertaken numerous other initiatives to address rising antisemitism.

In March 2023, it announced a partnership with Brandeis University, which will include a student fellowship program for undergraduates, conferences featuring leading experts on antisemitism, and collaborations with K-12 administrators. Additionally, Brandeis University’s Hornstein Jewish Professional Jewish Leadership Program will expand to include “Kraft Scholars,” who will participate in new online degree and certificate programs that will train them to respond to crises caused by antisemitic incidents.

Kraft, who led the remarkable transformation of the New England Patriots from a second tier club to an annual Super Bowl contender and winner of six such titles in under twenty years, founded FCAS after being awarded $1 million through Genesis Prize, an honor given to successful members of the Jewish community. FCAS focuses most of its resources on social media, aiming, it says, “to stand up against racist and violent rhetoric aimed at the Jewish people through the most accessible and most powerful avenue of information in the world.”

In a statement, Kraft, expressed hope for this latest campaign and praised Dr. Clarence Jones as an emblem of his FCAS’ highest aspirations.

“The work Dr. Jones has done over the course of his entire life and career is the embodiment of FCAS’ mission to build bridges and stand up to Jewish hate and all forms of hate. In the time we have spent together and through his work, I have become a huge fan of Dr. Jones, and I am proud to spotlight all that he has done for our nation,” he said. “With this ad, we hope to continue to spread Dr. Martin Luther King Jr.’s message of unity and equality at a time in which the country needs it mist most, and our goal is to reach a wide audience of people and inspire all Americans to stand up together, arm in arm, and fight this horrific rising hate.”

Follow Dion J. Pierre @DionJPierre.

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