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Jerusalem bill: A return to anti-democratic legislation?

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.

Read more: Could a referendum on a peace agreement actually pass?

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.

Read more:
Right-wing parties revive attack on left-wing NGOs
Silence is no longer an option: A call to action from Israel

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    1. “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.” : Of course it can’t. If the Knesset is fully sovereign, each Knesset can do what it wants; even the Basic Laws become a matter of indulgence to the past. So too each Knesset can do what it wants on each day. From my little window here at 972 the underlying theme of the national right seems to be that the “people” speak with a single voice. This bill would essentially make a minority of the Knesset the voice of the people, which strikes me as fear that not even the Knesset will do what the true voice wants, and that is a good sign.

      Negotiators generally like to claim they have all cards to play, if nothing else to just keep the words rolling. Livni has made statements indicating some sort of common Jerusalem space is possible; but with no voting block in the Knesset it is unclear what she really is; her job security may be looking good in American eyes. Bibi either wants to keep the game going or, in American eyes, not be responsible for spoiling the game. And, as PM and FM, he wants to keep his power unchecked (recall the bills to augment PM ability to withstand votes of confidence). So he is opposed for structural and tactical reasons. I’ll give you want you want, so why make a fuss?

      Legislative attempts to check the High Court are inevitable under the present national/religious right doctrine of Knesset Supremacy, which even Aharon Barak now seems to embrace. If the High Court continues its attempt to develop an independent backbone, dominate ideology will force Knesset action. The Court must ultimately embrace judicial review as inherent; it can do so through the Declaration of Independence, where promises against the Knesset are sustainable only if the courts can act. Once again, the Declaration is a meta-constitution framing any Israeli constitution, written or implicit. That’s the way out of this mess.

      Reply to Comment
    2. Average American

      this article talks about a bill by two Kahanists, Leiberman and Bennett.

      What happened to the article about Kahane posters on West Bank military posts? It had alot to do with anti-democratic legislation. Has it been censored? Quickly removed to keep it from threatening Israel’s commitment to Democracy?

      Reply to Comment
    3. XYZ

      The arguments that right-wing proposals are “anti-democratic” when made by the Left have NOTHING to do with “principles” or “democracy”. They are quite willing to use anti-democratic methods if it suits them. A good is example was the passing of some “basic laws” in the 1990’s which Barak’s Supreme Court then used as a basis for overturning Knesset legislation. Those “basic laws” were passed, IIRC, by a vote of something like 22-21 which means that the majority of the Knesset DIDN’T EVEN VOTE ON THE MATTERS. There was no public discussion of the matters beforehand, either. Thus, the Left views it as their divine right to ram through legislation without discussion regardless of the public will.
      My ongoing observation of “progressive” views shows a major contempt for the public, who is viewed as ignorant or brain-washed and that the “progressives” have the right to work against true democratic procedures.

      Reply to Comment
      • I view the Basic Laws as something of a farce. A legislature cannot create a constitution without having the power to later abjure its creation. Indeed, the US Supreme Court held in the late 1880’s that a State legislature could not prevent future legislatures from reversing present decisions. Only your Declaration of Independence can create a constitutional democracy, which indeed is what the Constituent Assembly was empowered to do. By transforming itself into the Knesset, it usurped sovereignty and the promise of constitutional rights in the Declaration.

        I do not know the vote spread on the various Basic Laws. Taking your example as given says little, however. All in the Knesset knew of the vote. It just seems many either abstained or absented themselves; indeed, even Bibi has absented himself from a vote or two. MK’s can do this. Under your own view of Knesset sovereignty, they have the inherent power not to vote. So to claim a 21-20 vote, if that it be, railroads democracy is void on your own terms. As to lack of public discussion, if the Knesset is sovereign, public discussion is an indulgence of the Knesset. I have heard of no evidence that the previous or present Knesset frames votes based on polls. Indeed, minority rights cannot be protected by such logic of majority largess, as the Boycott Law demonstrates.

        A constitutional republic is a check on democracy by majority rule. If you want to say your identified “progressives” (horrible, horrible word) show contempt for the public, then so too in the US and all Western European states. Under your view Brown v Board of Education would have been impossible; US schools could have remained segregated in law. Under your view small, deviant religions, such as the Jehovah Witnesses, could have been persecuted through legislation and police action. If you think “the people” are on your side, understand that the people manifest ephemerally; they are rarely unchanging overlong.

        Reply to Comment