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New bill would let the Knesset crush the Court

Haaretz reports that a new bill for a Basic Law currently being debated would allow the Knesset to override Supreme Court rulings that a law is unconstitutional, by a 65-member Knesset vote, neatly killing off one of the last traces of checks and balances in Israel. It is particularly disturbing that Reuven Rivlin, Speaker of the Knesset, supports the bill, which as a Basic Law would have constitution-like status. Rivlin up until now has been one of a small group of Likud parliamentarians who could actually be counted on to preserve at least the structures of democracy, and has repeatedly fought tooth and nail against some of the most vicious anti-democratic legislation. Now he is quoted in Haaretz saying:

“The Knesset and the Supreme Court have been on a chronic collision course for 20 years, when the Knesset spilled into the judicial system in response to judicial activism…We must agree today, twenty years too late, on wording that will clearly define the boundaries of each entity. It is a mutual interest,” said Rivlin.

Even if his logic is legitimate, Rivlin’s conclusion is terribly dangerous and reveals that he ultimately views judicial activism as the true culprit. The debate over the bill will also be a test for the new Chief Justice Asher Grunis, who is considered a conservative opposed to judicial activism, but has also voted against some right-wing initiatives.

Merav Michaeli provides an excellent voice of reason (she always does), citing all the right facts to help de-fang the twisted image of a Supreme Court bogeyman that is being constantly cultivated in Israel. I highly recommend reading the entire piece.

An unconstitutional law is a law that violates the constitution. Israel does not yet have an actual constitution. It has Basic Laws – two of which protect the partial civil rights of its citizens – and a Supreme Court that regards the protection of civil rights as important. The court has struck down 10 laws as unconstitutional – not hundreds, as enemies of the court would like us to believe – and nine of them had to do with the basic rights of Israel’s predominantly Jewish citizens. Most of the decisions were made to protect citizens from the tyranny of the government.

That’s democracy – protecting citizens from the government, and protecting the minority from the majority. No majority – even one of 120 MKs – can make a ruling democratic if it is undemocratic. An undemocratic ruling is a ruling that unnecessarily violates human rights, whether of a minority group or of an individual. It is not for naught that Supreme Court President Asher Grunis, despite his reputation as a conservative right-winger, supported the abrogation of five out of the six laws discussed by benches on which he sat.

 

Whether or not this latest insult to democracy gains traction, it sends a frightening message on various levels, and should scare every single citizen.

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  • COMMENTS

    1. Richard Witty

      A horrible milestone.

      This comment has been edited for offensive comment

      Reply to Comment
    2. Aaron the Fascist Troll

      Quote: “That’s democracy – protecting citizens from the government, and protecting the minority from the majority. No majority – even one of 120 MKs – can make a ruling democratic if it is undemocratic. An undemocratic ruling is a ruling that unnecessarily violates human rights, whether of a minority group or of an individual.”
      *
      Proof that the concept of democracy is dead, gone, forgotten. The word is basically meaningless. It’s now identified, by the profound political theorist Ms. Michaeli, with things that used to be considered the antithesis of democracy. Even people who are smart enough to know better (like the late Tommy Lapid) have pulled the same sleight of hand. Whatever meaning the word “democratic” may still have is completely covered by the terms “good,” “the kind of government I personally like,” “me and my friends,” “our side.”

      Reply to Comment
    3. Max

      Dahlia, looks like your link is broken, can you post it in the comments?

      Reply to Comment
    4. POLTERGEIST

      I find it fascinating that leftists consider an attempt to implement the rule of the majority to be “vicious anti-democratic legislation.” Welcome to 1984.

      Reply to Comment
    5. Dhalgren

      Well, this is not good. One more box checked on the road to apartheid (a la the High Court of Parliament Bill of 1952).

      Reply to Comment
    6. annie

      Will israel change the name of the court too, if it is not supreme?

      Reply to Comment
    7. Rodrigo

      The whole thing is absurd. A court is ruling legislation to be unconstitutional on the basis of a non-existing constitution.
      .

      The basic laws (the constitution) are being written. This is going to be one of them. I have no idea what the problem here is. There are procedures for amending constitutions all over the world, including in the United States. This law is based on a suggested law endorsed in 2005 by the then sitting President of the Supreme Court.
      .

      All the eloquent eulogies to Israeli democracy are simply politically motivated attacks on the current sitting government.

      Reply to Comment
    8. There are some good comments here, ones that echo a great divide in political thought in Israel.
      .
      Aaron the Fascist Troll and Poltergeitst are right that pure democracy is being conflated with a Republic in the old sense. In fact, rights, when frist articulated, are likely not to be useful or wanted by an absolute majority of the population–that’s why they’re rights against the State. I believe there are polls in the US which show that, if you word things “right,” a majority of respondents would aboragate free speech (as applied) as articulated by various Supreme Court decisions. Rights are a bar to pure democracy.
      .
      Rodrigo, who claims that the slowly forming Basic Laws of Israel are its constitution, is right that, historically, the Knesset was to create a constitution. The Israeli polity is now being told that the Knesset is fulfilling its original duty to create a constitution. This is a lie. The Israeli Declaration of Indpendence called a Constituent Assembly to draft a constitution. The Assembly did no such thing, rather converting itself into the Knesset of implicit absolute power you have today (for is not the entity drafting the constitution of absolute power? No, but that’s another matter). HOWEVER, the Declaration of Independence clearly stipulates certain basic rights that any constitution MUST preserve; this was requried by the UN mandate creating Israel, and, like it or not, Ben Gurion et al agreed to go that route. As I have said too often on this site, your Declaration is itself a constitutional document limiting any future constitution, thereby fusing pure democracy ala a Parliament with Republic rights. But now some in the Knesset want to use their purported absolute power to potentially override any High Court opinion–even when the High Court (might) attempts to protect the rights designated in the Declaration. This IS pure democracy which neither the US (by formal constitution) nor the UK (by tradition) allow.
      .
      Former Cheif Justice Rehnquist of the US Supreme Court, certainly a hard conservative if ever there was one, at times turned on a Republican Congress which tried to limit judicial review indirectly. A conservative keeps what he has no matter what, and Rehnquist refused to part with judicial control. He even sided with the liberals once to sustain Miranda, which requires that those arrested be informed of essential rights at the time of arrest, even though he thougt ill of the principle before sitting on the Court.
      .
      So there is principled hope here: your new Chief Justice has sided with several decisions declared unconstitutional (whatever that means in your land) AND you have a clear legal logic route to create judicial review while preserving your Declaration. I have been convinced for some time that this path way will unfold; when, I know not. But I have enough faith in ideas and simple historical accuracy that the path will appear.
      .
      Dahlia, I know this is a long comment, but I have not commented much of late and I think I am on mark on this. The history is clear, the logic straightforward. Judical courage in standing for the Declaration and the thought proclaimed at Israel’s foundation is necessary. But I haven’t given up by far yet on the quality of minds in Israel. Even Aaron the Fascist Troll might find solace in this path.
      .
      Your not living in the French Revolution. It’s time to say so.

      Reply to Comment
    9. @Greg, I think you have a blanket approval to write as much as you want, since your posts are always informative, edifying, on-topic (and hopeful, although this is not a requirement!). I do hope all our readers study them. I’ve always found the failure of the 1949 Constituent Assembly to be depressing and a foreshadowing of future israeli troubles; but never saw it as a green light for the Knesset to take absolute power, actually the opposite: having failed at its singular mission, the new Knesset should have been forever humbled, and shd have accepted heavy reliance on a checks-and-balances system, given that the complexities of israeli society proved too hard for that original body to handle. And society has become even more complex since then. so either this is codified in a constitution developed precisely through an incremental, iterative process where the agents have some parity, which the Knesset (and Rodrigo) is trying to stamp out; or all at once (which seems eternally impossible). Or we can watch liberal democracy slowly, but incrementally, procedurally, will itself out of existence – either tomorrow, in three years, or – beyond the green line (it’s no accident that this is happening just after the Migron case) – yesterday.

      Reply to Comment
    10. You don’t have to have a constitutional assembly; the Court could affirm the Declaration as a meta-constitutional document, upholding only what that document says must be in ANY constitution, no matter how “drafted.” This would, as applied, be incremental.
      .
      David Hume said that what can be abused will be abused. Not that everyone will abuse, but that someone will appear who does abuse. The Constituent Assembly usupred absolute power; they, nor their descendents (the long line of Knessets), will be humble. Former Chief Justice Aaron Barrak tried to create or find a balance to the Knesset (“law is everywhere,” he said), but that has created the equivalent of the US rightists’ attack on the interventionist Supreme Court, and that Court (sometimes) at least had constitutional text to stand on. You need text, and you have it. Someone(s), on the Court, must decide there is no alternative. But cannot law professors and whatnot make the case until then? I take some solace in knowing that the Citizenship case was decided by a single vote; the equivalent in the US was decided 8-1 back in the 1880′s.
      .
      You are in the dark time of Israeli law. I think, eventually, you (all) will show us something new, good new. But it is going to get awful painful before that.
      .
      Fortitude

      Reply to Comment
    11. Poltergeist – it seems you only have a very basic knowledge of democracy. Of course, “rule of majority” is the foundation of democracy. But the next rule, which preserves democracies against mob rule, is protection of minority opinions and rights. Without the latter, a democracy very easily descends (like, uh, Nazi Germany and other demogogic, war-time states) into true Big Brother land: an uneducated and malleable populace, whose opinions and beliefs are mercilessly molded by politicians who appeal to the most primitive human emotions: fear and desire. Sounds a lot like Israel to me.

      Reply to Comment
    12. POLTERGEIST

      arvey, it seems like you have a very narrow definition of democracy. I don’t think anybody would suggest that the ancient Athenian democracy was not a democracy because it was a slave owning society, and obviously slaves were not entitled to the same rights as free citizens. The same goes for the newly created United States, the first modern-style democracy, which also permitted slavery. You seem to be conflating the term democracy with the term “liberal democracy” or as I like to call it “leftist democracy.”

      What is the essence of the leftist thought and philosophy? What unites communists, socialists, anarchists and plain old liberals? I would suggest that it is the idea of inherent equality. In most Western societies (I include Israel here) where the left has a virtual monopoly on public discourse , we are taught to believe that all races, genders, religions, sexual orientations are inherently equal and equally capable of contributing to the society. Any disparity that exists between groups (racial, religious etc) is explained by a history of oppression, discrimination etc. There is one major problem with this state of affairs. There is absolutely no evidence to support the idea of inherent equality. It is based on purely wishful thinking. In fact, all evidence points to the contrary.

      Any alternative view amounts to intellectual heresy, and whoever dares to openly express such a view is automatically ostracized and labeled racist, sexist, homophone etc. Another technique that is commonly employed by the powers that be to silence such dissent is to portray the dissenters as “ignorant” and “uneducated.” (wink, wink) In many ways, it is comparable of treatment of heretics in the middle ages who had dared to question the Catholic Church’s doctrines.

      What we have here is not a clash of pro-democracy and anti-democracy forces as the leftists would like to portray it. What we have here is a clash of different value systems. The Jewish value system and the leftist value system. Each side believes that their value system is superior.

      Democracy is not a panacea for all all societal ills. As you point out democracy brought Hitler to power. But, it’s difficult to dispute the fact that the Western style of democracy is responsible for unprecedented innovation and flowering of human spirit in countries that successfully adopted it. However, it is becoming abundantly clear, Western style democracy is flawed, as it is incapable of defending itself against a religious system such as Islam. Adherence to leftist values have caused the dramatic drop in the birth rate of native Europeans. On the other hand, Muslim immigrants that are flooding Europe in large numbers are faithfully following the Biblical commandment to be fruitful and multiply. If nothing is done, the Western civilization in Europe will be replaced by a sharia based system, the way it happened in the Middle East after Islamic invasion.

      This is precisely why a leftist democracy is a non-option in Israel if it is to survive. The Israeli society MUST be based on the Jewish Torah values as opposed to the impractical and unimplementable leftist value system. Let’s remember that the Torah has kept the Jewish people going for at least 3000 years, far longer than any democratic system ever existed. Yes, Israel must become far more religious than it is now. But in order to make that happen the leftist power in the media, academia and judiciary must be confronted.
      The Israeli Supreme court, which is the topic of this discussion is a bastion of leftist power. The self-appointed judges on the Supreme Court have an almost unlimited power to overturn any Knesset legislation. It is truly the Big Brother as you put it. One would think that someone who sincerely believes in the leftist democracy would be happy that there is going to be a way to keep the Supreme Court in check as it is done in most other Western democracies. Alas, we have an Orwellian situation where any attempt to limit leftist power or to subject it to scrutiny is declared to be a threat to democracy.

      As it becomes more and more obvious that multiculturalism will never work, and some groups are simply incompatible with each other, the leftists resort to more and more undemocratic means to keep their hold on power. One fine example of that is the European Union. Another one is the Israeli Supreme Court.

      I found one of your last sentences to be illuminating of the way the left views the Israeli Jewish population. Here’s a quote: “ an uneducated and malleable populace, whose opinions and beliefs are mercilessly molded by politicians who appeal to the most primitive human emotions: fear and desire.” Might I humbly suggest that this is a bit arrogant? The Jewish population in Israel is one of the most highly educated in the world. Is it possible that their opinions were molded by over 100 years of war, genocidal threats, suicide bombings and Nazi-like propaganda of their Arab adversaries? I would suggest that you watch Memri videos to understand exactly what I am talking about. Let’s not forget that Hamas won close to 60% of the vote after having employed genocidal tactics such as suicide bombings against Israeli civilian population. That is far greater than the proportion of German citizens who ever voted for the Nazi party. Also according to a recent poll, 97% of both Egyptians and Jordanians dislike the Jews. I can go on and on with this. I wonder if a faithful leftist like you (or Dahlia) would ever accuse the Arabs of racism? Or is that label reserved only for the perceived winners? I am afraid that this arrogance is not unique to you or other “enlightened” individuals, it is in fact a symptom of the desperation the Left feels as it sees its power diminish.

      Reply to Comment
    13. Richard Witty

      This is the first time that I’ve had a comment ruled offensive. I find it oddly ironic.

      The significance of the dismembering of a branch of government, designed in part to hold other branches accountable to the rule of law, is of literally fascism.

      It is that structurally significant (beyond incremental), and deserves parallels with the worst historically.

      Reply to Comment
    14. Piotr Berman

      Richard, I think that you last comment is indeed offensive, not because of its content but because of its syntax.

      At the very least, you deserve parallels.

      Reply to Comment

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