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| Session of the Constitution, Law and Justice Committee - March 20, 2023 (JTA) |
In a country that is deeply divided, where attending anti-government protests has become a weekly ritual for many, at least one idea still unites the right and left: Israel appears to be hurtling toward a constitutional crisis.
The crisis — which Prime Minister Benjamin Netanyahu termed a “governmental breakdown” during a recent visit to Germany — would flow from legislation Netanyahu is pushing that would overhaul Israel’s judiciary. The proposal — which critics say threatens Israel’s democratic character — would increase the coalition’s control over the appointment of Supreme Court judges, and would enable Israel’s parliament, the Knesset, to override court decisions with a simple majority.
Sorry. You can’t have a constitutional crisis when there is no constitution. But Israel’s Supreme Court acts as though there is one.
The way the political system in Israel works is that the Knesset and the Supreme Court are two competing branches that determine Israeli law. But it is the Supreme Court that has the final authority. Which in essence makes it the real authority. All the Knesset can do is try to pass legislation that will not be struck down. But if the Supreme Court determines that a law is ‘unconstitutional’ it will be struck down.
In light of the fact that Israel has no constitution, what is it that determines the court’s decision to declare a law unconstitutional? The answer is that it is their definition of what a liberal democracy should look like. Which is based on their mostly secular and politically liberal approach to all issues.
The current right wing government is trying to change all that by taking away the court’s unlimited power and handing it to themselves - by giving the Knesset the power to overrule the court by a simple majority vote. That is what all these angry protests are about.
Or are they? My guess is that if the tables were turned and a liberal Knesset was chosen by the voters – and the court that was being emasculated was a perpetual self selecting conservative court, there would not be any protests at all.
Although there are some important side issues that are fueling these protests.(...like whether a convicted felon who has completed his prison sentence should be able to be a government minister - or whether the laws governing gifts to people in office should be changed) in my view, this is really more of a battle between the values of right and the left than it is about whether Israel will remain a democracy.
What if the law as originally submitted is passed? And the Supreme Court strikes it down as ‘unconstitutional’? Who should prevail? That depends on which side of the political aisle one is on. But I submit that there is a better way to determine who should prevail by posing the following question. Should it be a branch of government chosen by the people? Or a branch of government that answers to no one but themselves? This is the constitutional crisis everyone seems to be talking about. I just don’t see it that way.
In a democracy I know what the answer should be.
It appears, however, that cooler heads did prevail. The judicial reform bill presented by the current right wing government has been shelved for the time being. It seems that there is a chance that there will be some sort of compromise. What that will be remains to be seen. But compromise usually means that neither side gets everything they want, but both sides get some of what they want. I hope that happens and soon. Or things ae only going to get worse.
