Connect with us
The Residences advertisement

Uncategorized

Israeli democracy may not survive a ‘reform’ of its Supreme Court

(JTA) — On Dec. 29, Israel swore in Benjamin Netanyahu’s sixth government. The Likud leader became Israel’s prime minister once more, and one week later, Israel’s long-anticipated judicial counterrevolution began.

In the Knesset Wednesday, newly minted Justice Minister and Netanyahu confidant Yariv Levin unveiled a package of proposed legislation that would alter the balance of power between Israel’s legislature and its Supreme Court.

At the core of this plan is a bill to allow the Knesset to override the Supreme Court. Levin’s proposals — which almost certainly have the immediate support of a Knesset majority, regardless of Levin’s assurances that they would be subject to “thorough debate” — would pave the way for Israel’s new government to pass legislation that curtails rights and undermines the rule of law, dealing a blow to Israeli democracy.

The dire implications of this proposed judicial reform are rooted in key characteristics of the Israeli political system that set it apart from other liberal democracies. Israel has no constitution to determine the balance of power between its various branches of government. In fact, there is no separation between Israel’s executive and legislative branches, given that the government automatically controls a majority in the parliament. 

Instead, it has a series of basic laws enacted piecemeal over the course of the state’s history that have a quasi-constitutional status, with the initial intention that they would eventually constitute a de jure constitution. 

Through the 1980s, the Knesset passed basic laws that primarily served to define state institutions, such as the country’s legislature and electoral system, capital and military. In the 1990s, there was a paradigm shift with the passage of two basic laws that for the first time concerned individuals’ rights rather than institutions, one on Human Dignity and Liberty (1992) and the other on Freedom of Occupation (1994). These laws enshrined rights to freedom of movement, personal freedom, human dignity and others to all who reside in Israel. 

Aharon Barak, the president of Israel’s Supreme Court from 1995 to 2006, argued that these laws constituted a de facto bill of rights, empowering the court to review Knesset legislation and to strike down laws that violate civil liberties, a responsibility not explicitly bestowed upon the court in the basic law pertaining to the judiciary. In 1995, the Supreme Court officially ruled that it could indeed repeal legislation that violates the country’s basic laws, heralding an era of increased judicial activism in Israel in what became known as the “judicial revolution.” The court has struck down 20 laws since, a fairly modest number compared to other democracies.

The judicial revolution of the 1990s shifted the balance of power in Israel’s political system from one of parliamentary sovereignty, in which the Knesset enjoyed ultimate power, to one in which the legislature is restricted from violating the country’s (incomplete) constitution. Israel’s Supreme Court became a check on the legislative branch in a country that lacks other checks and balances and separations of power.

As a result of these characteristics, the Supreme Court currently serves as one of the only checks on the extraordinary power of Israel’s 120-member Knesset — which is why shifting that balance of power would have such a dramatic impact on Israel’s democracy.

Levin’s proposed judicial overhaul includes several elements that would weaken the power and independence of Israel’s Supreme Court. The plan includes forbidding the Supreme Court from deliberating on and striking down basic laws themselves. It would require an unspecified “special majority” of the court to strike down legislation, raising the threshold from where it currently stands. 

Levin has also called for altering the composition of the selection committee that appoints top judges to give the government, rather than legal professionals, a majority on the panel. It would allow cabinet ministers to appoint legal advisors to act on their behalf, rather than that of the justice ministry, canceling these advisors’ role as safeguards against government overreach. Should a minister enact a decision that contravenes a basic law, the ministry’s legal advisor would no longer report the violation to the attorney general, and would instead merely offer non-binding legal advice to the minister. 

The pièce de résistance is, of course, the override clause that would allow the Knesset to reinstate laws struck down by the Supreme Court by 61 members of Knesset, a simple majority assuming all members are present. The sole restriction on this override would be a provision preventing the Knesset from re-legislating laws struck down unanimously, by all 15 judges, within the same Knesset term. 

This plan’s obvious and most immediate result would be the effective annulment of the quasi-constitutional status of Israel’s basic laws. If the Knesset’s power to legislate is no longer bound by basic laws, these de facto constitutional amendments no longer have any teeth. There are no guardrails preventing any Knesset majority from doing as it wishes, including violating basic human rights. The Knesset could pass laws openly curtailing freedom of the press or gender equality, for example, should it choose to do so.

This counterrevolution, in effect, goes further than merely undoing what occurred in the 1990s.

Most crucially, the Knesset that would once again enjoy full parliamentary sovereignty in 2022 is not the Knesset of Israel’s first four decades. Shackling the Supreme Court is essential to the agendas of the new government’s various ultra-right and ultra-religious parties. For example, the haredi Orthodox parties are eager to re-legislate a blanket exemption to the military draft for their community, which the court struck down in 2017 on the grounds that it was discriminatory. They also have their sights on revoking recognition of non-Orthodox conversions for immigrants to Israel, undoing a court decision from 2021. 

The far-right, Jewish supremacist parties of Bezalel Smotrich and Itamar Ben-Gvir, meanwhile, see an opportunity to deal a decisive blow to an institution that has long served as a check on the settlement movement. They hope to tie the court’s hands in the face of oncoming legislation to retroactively legalize settlements built on private Palestinian land, which are illegal under Israeli law. But this is only the beginning: Neutering the authority of the court could pave the way for legal discrimination against Israel’s Arab minority, such as Ben-Gvir’s proposal to deport minorities who show insufficient loyalty. 

The timing of Levin’s announcement Wednesday could not be more germane. The Knesset recently amended the basic law to legalize the appointment of Aryeh Deri, the Shas party leader who is serving a suspended sentence for tax fraud, as a minister in the new government. The Supreme Court convened Thursday morning to hear petitions against his appointment from those arguing that it is “unreasonable” to rehabilitate Deri given his multiple criminal convictions, a view shared by Israel’s attorney general. Levin’s proposals would bar the court from using this “reasonability” standard. 

The Israeli right has long chafed at the power of the Supreme Court, which it accuses of having a left-wing bias. But a judicial overhaul like this has never enjoyed the full support of the government, nor was Netanyahu previously in favor of it. Now, with a uniformly right-wing government and Netanyahu on trial for corruption, the prime minister’s foremost interest is appeasing his political partners and securing their support for future legislation to shield him from prosecution.

In a system where the majority rules, there need to be mechanisms in place to protect the rights of minorities — political, ethnic and religious. Liberal democracy requires respect for the rule of law and human rights. Yariv Levin’s proposals to fully subordinate the Supreme Court to the Knesset will concentrate virtually unchecked power in the hands of a few individuals — government ministers and party leaders within the coalition who effectively control what the Knesset does. That those individuals were elected in free and fair elections is no guarantee that the changes they make will be democratic. 

—
The post Israeli democracy may not survive a ‘reform’ of its Supreme Court appeared first on Jewish Telegraphic Agency.

Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Uncategorized

At the Vatican, two elderly men — one Jewish, one Catholic — exchange gifts and mutual admiration

On Wednesday, two senior citizens, Robert Zimmerman, 85, a Jew originally from Minnesota, and Robert Prevost, 71, a Catholic of Chicago, had a brief meeting at the younger man’s office in central Italy.

Sources on the scene report that Zimmerman was in town for business and Prevost, who goes professionally by Leo, had recently cited Zimmerman’s work in the preface to a book about nuclear disarmament.

Both men dressed in uniform, looking a bit Spy Vs. Spy, with Zimmerman in a black hoodie and Prevost in white with a small white skull cap. The confab was brief, a bulletin from Prevost’s workplace reported, consisting of “greetings and a few lighthearted exchanges.”

Prevost gifted Zimmerman with prayer beads, and Zimmerman presented Prevost with a copy of his memoir, published under his pen name, Bob Dylan.

While Zimmerman was raised in a Jewish home, he had, for a time in the late 1970s to early 1980s, converted to born-again Christianity, confounding many.

The post At the Vatican, two elderly men — one Jewish, one Catholic — exchange gifts and mutual admiration appeared first on The Forward.

Continue Reading

Uncategorized

The Michigan Senate race showed the exact wrong ways to fight antisemitism

The campaign against Abdul El-Sayed was example after example of how not to fight antisemitism—a display of conflation, double standards, and bigotry that we need to learn from and reject if we hope to ensure Jewish safety and security in a pluralistic society.

El-Sayed won his election Tuesday with 52.5% of the vote. He won despite an ugly campaign that alleged that he was not only critical of Israel but antisemitic, and that he does not care about or consider Jewish safety, and in which he was repeatedly asked to prove his sincerity on Jewish safety while also being attacked for running for office while being Muslim.

El-Sayed is not above criticism and questions from Jews just because he is a Democrat and most Jews vote for Democrats. It is right and appropriate that Senate candidates have to answer questions about antisemitism. El-Sayed did campaign with Twitch streamer Hasan Piker in the primary, and Piker did liken Zionists to Nazis, and many Jews in Michigan and elsewhere are Zionists; it is appropriate for El-Sayed to be asked about that.

It is also fair for a candidate who is vocal in his criticism of Israel to be asked how he’ll work to ensure the safety of his Jewish constituents, since we know that there is at least a correlation between anger at Israel and violence directed toward Jews. After West Bloomfield, Michigan’s own Temple Israel was attacked, El-Sayed did say, “hurt people hurt people,” and though he was referring to a specific event—the perpetrator’s family was reportedly killed in an airstrike in Lebanon—it is understandable that he was called upon to explain his own remarks to upset Jewish families in his state, whom he is also charged with representing in Congress.

From this point, however, the campaign against El-Sayed developed in several ways.

For one thing, when critics make demands of politicians, they need to actually allow those politicians to meet them. Yet despite distancing himself from Hasan Piker (“a Twitch streamer,” as he repeated to reporters), speaking repeatedly about how and why he took the safety of Jewish Michiganders seriously, and apologizing at length for his “hurt people hurt people” comment, El-Sayed was treated in the media and by his political opponents (and by some Democrats) as suspect and insincere.

These same questions were not asked of his opponent, Republican Mike Rogers, whose student outreach team included someone who defended a Young Republicans group chat praising Hitler.

If El-Sayed had to speak repeatedly about Piker, why did Rogers not have to answer whether he accepted the view of the U.S. president—who like Piker, joined his preferred candidate on the campaign trail—that any Jew who voted for El-Sayed was crazy and should be ashamed of themselves? (This was not a one-off missive, but the latest in the long line of Trump comments insisting on American Jewish responsibility to be loyal to Israel by voting for him, Donald Trump.)

Why wasn’t Rogers grilled on what he made of comments by Ohio’s U.S. Senator Bernie Moreno implying that senators should have to believe in Jesus, a remark that if rendered policy would impact El-Sayed and also, say, every Jew in public office?

The discrepancy suggests that reporters, pundits, politicians, and Jewish leaders do not take antisemitism seriously from all corners, and in fact that they consider it worse and more suspect from a Muslim American who criticizes Israel than a Republican who doesn’t.

Worse, still, is that that Republicans trafficked in vile anti-Muslim hate throughout the campaign. Rozina Ali, author of Seasons of Fury: Four Families and the Rise of Islamophobia in America, wrote on X on Tuesday, “Islamophobia appears to be on the ballot in Michigan, in an unprecedented way.” These tropes weren’t new, Ali explained, but they were at a fever pitch this election, with El-Sayed dubbed a “jihadist leprechaun” by a sitting Senator. The vice president of the United States said El-Sayed has “zero attachment to this land.”

Too often, Jewish leaders and institutions met this rhetoric with silence, or even encouragement. As I argued last week, dual loyalty narratives against one population just make the voting public more comfortable with the trope being used against other groups, including Jews. Moreover: Silence is not going to build solidarity from non-Jews, and Jews — just 1.4% of voters in Michigan and two percent of this country — are not going to fight antisemitism on our own.

Finally and troublingly was the willingness of El-Sayed’s primary opponent, Haley Stevens, to claim that it was Jewish safety that motivated her public questioning of El-Sayed (notably over an ad that his campaign did not put out) and her eventual flip to campaigning and voting for Rogers. Stevens is a staunch supporter of Israel and was backed by AIPAC. However, she is not Jewish (though she said she is considering converting), and yet spoke repeatedly as if she had authority on what Jewish voters in Michigan wanted to hear from El-Sayed. But she was not an emissary from Jewish voters, who are not a monolith — and 60 percent of whom, per one exit poll, voted for El-Sayed.

What can we learn from this race? First, conflating criticism of Israel and calls for more challenging policies toward Israel with attitudes toward Jewish voters needs to stop, even or especially while understanding that anger toward the country can be channeled against the people here.

Candidates of both parties, regardless of their positions on Israel, need to be held accountable with demands for real answers on what they will do for the well-being of all of their constituents, including Jews, and including when those stumping for them challenge the idea of full Jewish participation in civic life.

Jewish voters need to reject the idea that Islamophobia and antisemitism are somehow at odds with each other, and that it costs us something to call out hatred of Muslim Americans when in fact, so often, we are on the same side of racist hatred. (On Tuesday night, X was filled with posts blaming Jews for El-Sayed’s victory and bemoaning what it meant for American culture.)

And reporters, pundits, politicians, Jewish leaders, and for that matter Jewish voters need to stop speaking about Jewish voters on antisemitism and Israel as though all of us understand the intersection of these issues in the same way or want to hear the same things about them from politicians.

Since Abdul El-Sayed will be in the Senate starting in January, we will soon have ample opportunity to put these lessons into practice.

The post The Michigan Senate race showed the exact wrong ways to fight antisemitism appeared first on The Forward.

Continue Reading

Uncategorized

Trump’s midterm defeat changes the equation for Netanyahu and Israel

The Republican rout in the U.S. midterm elections may have consequences far beyond America’s shores. The most immediate impact could be in Israel, where the struggle to translate Benjamin Netanyahu’s electoral defeat into a change of government is entering its decisive stage.

In the week that has passed since the Israeli election, there was much anticipation that Trump might intervene to rescue his longtime ally. He endorsed Netanyahu, suggested that Israel’s security depended on his continued leadership, and hinted that renewed war with Iran depended on his victory (seeming to believe, perhaps falsely, that Israelis yearn for this). There was speculation that he might pressure opposition leaders into joining a unity government headed by Netanyahu, reversing the political meaning of Israel’s election.

Now the American electorate may have changed the equation.

The Democrats’ sweeping gains, which enabled them to seize decisive control of both houses of Congress, represent a substantial repudiation of Trump’s administration. The president retains enormous authority over foreign policy and national security – but in January he faces a hostile Congress, increased scrutiny of his decisions and a political environment even less hospitable to another Middle Eastern military adventure.

There is a counterintuitive possibility, of course: Trump might conclude that the period before the new Congress takes office offers a final opportunity to strike Iran. A weakened president is not necessarily a restrained president, and yet another unpopular war, especially one suspected of serving Netanyahu’s political interests, could deepen the backlash against Trump at home as Republicans are already looking fearfully at 2028.

It’s reasonable to think that many of them would not want to be associated with a strong-arming of Israel’s opposition in order to rescue Netanyahu, who is, fairly or unfairly, scarcely less toxic in the United States these days than Vladimir Putin.

The larger point: Trump’s political leverage has diminished. His presidency has an expiration date, and the American political system is already beginning to look beyond him. This will offer headwinds to those Israeli politicians who argue that a government that could serve for years should be cautious about treating the preferences of a politically weakened American president as decisive.

That is an especially potent thought on Wednesday, as Israeli President Isaac Herzog begins consultations with Israel’s newly elected parliamentary factions.

Israel’s election produced a clear numerical result: Netanyahu’s bloc won 53 seats in the 120-member Knesset, while parties opposed to his continued rule secured 67. The opposition has a parliamentary majority, although it is struggling to form a governing coalition.

Under Israel’s system, the president consults representatives of the elected parties, who recommend a candidate to form the government. Herzog must then decide which lawmaker has the best prospect of assembling one. The recommendations are politically important but not legally binding, and the president is not required to select whoever receives the most endorsements, though this is the tradition.

If former IDF chief Gadi Eisenkot receives recommendations representing 67 seats, that would establish the breadth of parliamentary opposition to Netanyahu. Eisenkot would likely be tapped, and then he would face the central difficulty: what to do about Israel’s Arab parties.

Of the 67 seats held by Netanyahu’s opponents, 19 belong to Arab parties, whose electoral success reflected a remarkable increase in Arab turnout – which at around 85 percent exceeded that of Israel’s Jews. Several Jewish opposition leaders promised during the campaign not to rely on those parties to establish a government.

Eisenkot himself has said that he would demand any coalition partners agree that Hamas should be removed as a military and governing body in Gaza, which the Arab parties have not yet done. Polls show that a majority of opposition voters favor finding a way to form a government, even if it’s dependent on the Arab parties.

Indeed, many are arguing that this is a test of Israel’s democracy, and that for the opposition to stick to its refusal to rely on the Arab parties would strengthen enemies of Israel who argue that it is not a true democracy.

Here, too, the American midterms offer an intriguing counterpoint.

According to a voting breakdown in The New York Times, Republicans received 51 percent of the white vote, compared with 48 percent for Democrats. Would anyone seriously argue that the Democratic congressional victory is illegitimate because it depended partly on Black, Hispanic and Asian voters? Should Republicans retain the House speakership because they performed better among white Americans?

Of course not. Yet Israel faces an argument with a disturbingly similar implication.

If a parliamentary majority cannot govern because some of its members are considered unacceptable on ethnic or national grounds, the damage to Israel’s democratic reputation could be immense.

Under Israeli parliamentary rules, a government can win confidence through a majority of those participating in the vote. Abstentions or outside support from Arab lawmakers could therefore make a minority government possible.

With 48 seats for the non-Arab opposition parties, all Eisenkot would need would be the more moderate of the Arab parties, Ra’am, which has eight seats, to show support. The new coalition’s 56 seats could outvote Netanyahu’s 53 to win Knesset confirmation, even with the 11-seat Joint Arab List abstaining. That means Eisenkot does not necessarily require 61 affirmative votes to take office.

The obstacle is Avigdor Lieberman, head of the seven-seat Yisrael Beitenu party. A nationalist West Bank settler, he has fallen out with both Netanyahu and his ultra-Orthodox allies, and has been counted as part of the opposition. This week he reiterated his vow not to support a government dependent on Arab parties. But he also ruled out rejoining with Netanyahu, and described a repeat election as the worst option.

So while the outcome is clear now in the United States, in Israel the guessing game continues.

The post Trump’s midterm defeat changes the equation for Netanyahu and Israel appeared first on The Forward.

Continue Reading

Copyright © 2017 - 2023 Jewish Post & News