April 20, 2012
Israel’s battle of the constitution
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.