By a 5-4 majority, a ministerial committee on Sunday approved a bill that proposes to require 80 Knesset members to approve any negotiations about the future of Jerusalem before the issue can even be discussed in peace talks, as reported by Israeli press.
It sounds like a technicality: the bill is far from passing as law, as it still requires a Knesset vote. Although members of the prime minister’s Likud-Beitenu party and Naftali Bennett’s Jewish Home party drove support in the committee, Netanyahu himself opposes the bill, reports Times of Israel. Justice Minister Tzipi Livni, who has emerged as the main pragmatist in this government on all things related to the two-state solution, has submitted an appeal to the cabinet against the bill. Still, there are a few things this moment indicates.
First, the committee vote could actually provide concrete signs of which ministers are prepared to block or open the door to negotiations over Jerusalem, which could mean more than all their bluster. Recall that in the past Yair Lapid has indicated a maximalist position on Jerusalem. Livni’s active opposition to the bill indicates some commitment to a solution, not just a process. As for Netanyahu, his opposition may possibly imply a slow thaw in his mind over the status of Jerusalem as part of negotiations and a solution. In recent statements he has omitted his normal insistence on Jerusalem as the eternal, undivided capital, which was not lost on observers like Ben Birnbaum, whose excellent piece in the New Republic tracks this development and gives context to Israeli leaders who have, over the years, made the shift to accepting a compromise on Jerusalem when they get serious about a two-state peace process. The most recent one, Birnbaum points out, was Likud’s own Tzachi Hanegbi.
For two-state advocates, that’s the good news. Now the bad. The second observation is that this could herald the return of rotten legislation. During the previous Knesset session, a range of bills were proposed that threatened or outright violated democratic principles. The efforts bore strange and bitter fruit: the Nakba Law, the Boycott Law, the Acceptance Committee law, among others. Those that didn’t pass had their own dire impact on society by legitimizing the idea of legislating against minority groups, persecuting people for their political ideology or activism through legislation or weakening the independence of different branches of government.
Since the change of government, it hasn’t been totally clear whether the new leadership and Knesset would continue, cease or change the direction of the legislative assault on Israeli society. Sunday’s ministerial debates were perhaps the first troubling signs of an answer.
The bill regarding negotiations on Jerusalem is considered by some to be blatantly anti-democratic. In a typically astute opinion piece in Haaretz, Attorney Aeyal Gross argues that the bill is also illogical: a regular bill to be passed by a simple majority cannot determine the need for a supermajority. Further, Gross argues, Israel’s Supreme Court has ruled any number of times that the executive branch is responsible for foreign policy matters. Israel’s Basic Laws – the stand-in for a formal constitution – decree that the cabinet serves as Israel’s executive. This bill would place a foreign policy matter under the Knesset’s authority, thereby directly contradicting both a Basic Law and the Supreme Court rulings. In the absence of a formal, written constitution, that’s a dangerous blow to the rule of law.
And while we’re on the topic of the Supreme Court, the third point is that the bill doesn’t appear in a vacuum. On Sunday, a salvo of no less than four bills designed to weaken the power of the court were proposed for discussion. Likud Beitenu’s Yariv Levin is heading up the initiative together with Ayelet Shaked of Naftali Bennett’s Jewish Home. The Levin-Shaked bills include a proposal that the Knesset will choose the Chief Justice of the Court (currently chosen by a judicial selection committee, which usually selects the most senior judge on the court); a bill to weaken the court’s power of judicial review and expand the Knesset’s power to pass laws that have previously been rejected by the court; and a bill to change the judicial appointment committee to include more political figures. Those championing the bill are open about their desire to rein in the power of the court and place it firmly under Knesset oversight. While conservatives in Israel have often argued that the “judicial activism” initiated by former Chief Justice Aharon Barak has gone too far, even the right-wing daily newspaper Israel Hayom managed to find these measures offensive, running a long piece about the dangers of the bills and their threat to the separation of powers in Israel.
Maybe the bills are a scattershot: propose a number of extreme measures that may be unlikely to pass individually, and hope that one of them sticks. Maybe there is a general strategy that my colleague Noam Sheizaf has sometimes observed: Netanyahu allows the extremists to do his dirty work of pushing the bar in Israel beyond all reasonable notions of liberal democracy, then portray himself as the moderate who staves off the worst, while accepting the very bad.
None of it bodes well.