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Israel’s battle of the constitution

by Shmuel Rosner

April 20, 2012 | 9:00 am

Israeli Justice Minister Yaakov Neeman. (Photo: Reuters)

Note to readers: a different version of this article appeared yesterday ‎in the International Herald Tribune. You can read it here.‎

The cup is, as always, half full or half empty: Is a new piece of ‎legislation proposed by Israel’s Justice Minister Yaakov Neeman one ‎that would allow Israeli lawmakers “to reinstate laws that are struck ‎down by the Supreme Court”? Or is it, finally, the one that ‎‎“unequivocally recognizes Israel’s constitutional revolution”? ‎

Is it an attempt to circumvent the Supreme Court, as Defense ‎Minister Ehud Barak suggested when he announced his opposition ‎to the new legislation? Or maybe it is the exact opposite: a new law ‎that “empowers the Supreme Court to strike down laws”, as ‎commentator Yuval Elbashan was passionately trying to explain to ‎his friends on Israel’s left.‎

In short: Neeman is proposing a bill that will allow a small majority ‎of legislators in the Knesset (65) to reinstate laws struck down by ‎the Supreme Court. This is a bombshell with a long fuse. On the eve ‎of Passover, almost two weeks ago, Neeman lit the fuse that is now ‎burning fast. On Tuesday, Neeman was publicly criticized by Israeli ‎President Shimon Peres and Supreme Court Chief Justice Asher ‎Grunis. On Wednesday, the Knesset convened to discuss Neeman’s ‎surprise. ‎

But would the proposal strengthen the Court or the Knesset? ‎

On the one hand, Neeman’s bill formally recognizes the right of the ‎Supreme Court to strike down any legislation that’s incompatible ‎with Israel’s Basic Laws‎. These laws ‎function as chapters of the unfinished constitution that Israel does ‎not have. They were long considered by the Court as a tool by which ‎to measure the constitutionality of other legislation, but such legal ‎interpretation was never specifically endorsed by the legislative ‎branch. Such endorsement, law professor Ariel Bendor told me ‎Sunday, basically “adds up to recognizing that Israel does have a ‎constitution.” A great achievement for the position held by the Court. ‎

On the other hand, the proposal allows 65 of the Knesset’s 120 ‎members to bypass any Supreme Court decision and temporarily ‎keep the offending legislation alive (the Knesset would only be able ‎to reinstate legislation struck down by the Court for five years). ‎

At issue here is the right balance between the legislative and ‎governmental branches, and the Court. While Israeli liberals see the ‎Court as a defender of rights and the sole guardian of Israel’s ‎democratic values, there’s a growing sense of unease among large ‎segments of the population and even more so among policy makers, ‎who believe that the Court is setting policy instead of making law, ‎and holding Israel hostage to its liberal worldview, one that is not ‎compatible with the public’s true democratic aspirations. ‎

Since Israel does not have a constitution, the Supreme Court has to ‎invoke the country’s 14 Basic Laws when it reviews the ‎constitutionality of other legislation. Back in February, the Court ‎eliminated the so-called Tal Law (a law that enabled Orthodox ‎Yeshiva students to defer military service), citing Israel’s Basic Law: ‎Human Dignity and Liberty. This created a political crisis that has not ‎yet been resolved, and has put the government under huge pressure ‎to draft new policies that would be very complicated to pass in the ‎Knesset.‎

Thus, legislators of different stripes have periodically criticized the ‎Court for “overstepping its role.” Notable among such critical voices ‎are right-wing hardliners of the settlement movement, but also the ‎former justice minister from the centrist Kadima Party, Prof. Daniel ‎Friedman. In turn, as she was leaving her post, outgoing Supreme ‎Court President Dorit Beinish accused legislators of waging an ‎ongoing campaign of “deceit, poison and incitement” against the legal ‎system. ‎

Enter Neeman, the controversial justice minister, a man of the ‎conservative right, shrewd and secretive, with a long and rocky ‎history with Israel’s legal elites. And on April 5, exactly 24 hours ‎before the beginning of Passover and a weeklong vacation – and ‎without giving much by way of explaining why now, why this – he ‎lobbed a bombshell of a proposal: a 15th Basic Law to amend all ‎Basic Laws.‎

Many Israelis (mostly) of the left cannot imagine how Neeman’s law ‎might be good for Israel’s liberal democracy. In this country, ‎believing in a strong and active Court is important ingredient of the ‎typical ideological menu of the left. But there’s been outcry on the ‎right, too. Yariv Levin of Likud believes the Knesset should be able to ‎overrule the Supreme Court with less than a majority of 65. ‎Neeman’s proposed legislation, Levin says, only legitimizes a ‎dangerous process by which unelected judges can unmake ‎legislation. ‎

It’s a war of mutual suspicion: The suspicion that Neeman must be ‎trying to do something against the Court that we cannot yet ‎understand or appreciate; the suspicion that Knesset members - a ‎chaotic bunch of irresponsible hacks – will run wild with this new ‎permit to override Court decisions; the suspicion that without the ‎balancing hand of a liberal court Israel will fast deteriorate into being ‎illiberal state; the suspicion that without the curbing of Court power ‎that the new law aims to achieve, Israel will slide into “anarchy”, as ‎Neeman threatened Wednesday in the Knesset. ‎

These are all understandable suspicions - without much basis to rely ‎on. In Israel, rhetoric is always hyped while actual actions tend to be ‎much more restrained. The Court – after establishing its right to ‎strike down laws – is very careful not to make it a habit. The Knesset ‎‎– crying wolf every now and then, and threatening to somehow ‎punish the courts – confines real action mostly to press releases. “I ‎think that there’s no reason to fear this new law”, Prof. Bendor told ‎me. Alas, it is not the law most objectionists fear, it is the legislator.‎

In short, Neemen’s proposal is not as revolutionary as both its critics ‎and proponents would like us to believe. It might improve some ‎problematic aspects of the current state of affairs – for example, ‎establishing that law could only be overturned by nine justices, no ‎less; it might worsen other aspects – some opponents rightly focus ‎their attention on upping the number of needed Court-‎circumventing legislators from 65 to 70 to make roughshod-running ‎legislation less likely. ‎

But all in all, relations between the Court and the Knesset, and the ‎Court and the government will remain strained – as they should be ‎in a vigorous democracy. And in a country facing the kind of ‎dilemmas Israel has to face, where lives of policy makers are so ‎complicated even without having to consider more restrictions put ‎in place by the courts, mutual frustration of the different branches of ‎government is guaranteed. ‎

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