Why would any government, with eyes wide open, antagonize so many of its people and incite such unprecedented dissent and protest within its body politic? After all, the Israeli Supreme Court has intervened in decisions of the Knesset only 22 times in the nation’s 75-year history.
There are really only two reasons that make any sense. One is because the current coalition government’s existence is hostage to the most far-right, rejectionist elements in Israeli politics, and they are forcing this reordering of the judiciary’s role simply because they can. They know, and Prime Minister Netanyahu knows he has no ruling coalition government without them.
That’s both a weakness and a strength of ruling coalitions. Netanyahu has cobbled together a conservative coalition that includes those with pure antipathy for Israel’s Palestinian citizens and who have no patience for a high court concerned with the “reasonableness” of any policies or laws they might want to legislate.
The second possible reason for leading the country into such turmoil is that the coalition government, or elements within the government, harbors plans they know Israel’s Supreme Court would disallow as “unreasonable,” which the high court has (or had until this week) the authority to do.
The Supreme Court can, or could, strike down almost any government law or policy that the high court’s jurists consider “unreasonable.” At first blush, that seems to consign incredible power to the country’s highest court. However, Israel is a country without a constitution. Instead, it has Basic Laws, which are legislated from time to time. To assure that the new Jewish state wouldn’t be whipsawed with rash or highly divisive or discriminatory laws or policies at the whim of each government that came to power, the founders wisely consigned great discretion to the panel of jurists who comprise the nation’s highest court. Israelis, perhaps more than any other people on earth, deeply understand the tyranny of pure majoritarian rule. So, by the way, did men like Thomas Jefferson, James Madison, and America’s great 4th Chief Justice, John Marshall.
That means that in a pure majoritarian-rule state, the minority has only those rights conferred by the majority or, conversely, loses those rights that the majority may withdraw.
In Israel, it is (or was) the Supreme Court that protects against an overreaching legislature or chief executive. However, Israel’s ruling coalition has given itself the authority to be the last word regarding what it can and cannot do. It has stripped the Supreme Court of its power to find a decision of the government to be “unreasonable.”
Is that cause for alarm? Yes. It should be. In an interview with CNN’s Wolf Blitzer this week, Israeli Prime Minister Benjamin Netanyahu said—“When they (Israel’s Supreme Court) see we have a majority to legislate without them, maybe we’ll be able to legislate with them.” In other words, what choice will they have but to bow to what any sitting government decides to do? It was an arrogant comment unbecoming of the Prime Minister.
Small wonder Israelis are protesting in the streets by the hundreds of thousands. What a strange time, it seems, for politicians to have embarked on a divisive mission to largely enfeeble the Israeli Supreme Court. It begs the question Why? It doesn’t seem to be a difficult question to answer.
The coalition Prime Minister Netanyahu has cobbled together to rule includes the most far-right politicians in Israel. That includes National Security Minister Itamar Ben Gvir, a follower of the late Israeli extremist Meir Kahane, and Finance Minister Bezalel Smotrich, who is outspokenly hostile to Israel’s Palestinian citizens.
Despite the extremes within its political spectrum, Israel is rightfully regarded as one of the world’s most vibrant democracies. Israel has survived and flourished in one of the most turbulent corners of the world. It was attacked at its founding in 1948 and threatened again in 1967 and attacked again in 1974. The country prevailed, however, in each encounter and wound up with the adjacent territory from which it was threatened, including east Jerusalem, the so-called West Bank encompassing land to the border with Jordan, and the Golan Heights, from which Syria attacked.
In my travels to Israel, I have spent time meeting with Israeli politicians and military officers, and during the first intifada (uprising), I traveled to the west bank to meet with Palestinians. There are those on both sides who are rejectionists, as well as those who yearn for peace and peaceful coexistence, and there are those on both sides who simply have no interest in accommodating the other.
While the overwhelming majority of Israelis and many, if not most, Palestinians yearn to end the conflict between their two peoples, there has always been a strong rejectionist movement on both sides. In Israel, the rejectionists who belong to parties that captured enough votes (3.25%) to have seats in parliament have been brought into a ruling coalition. They now have tremendous leverage in the executive as well as the legislature.
Israel is a democracy, whereas America is, by contrast, a democratic republic. We are a nation of fifty separate parts, and each is governed by its own set of laws, all of which must be consistent with our governing constitution.
Israel depends on its thirteen basic laws, enacted over the last sixty-five years. Theoretically, the basic laws constitute the foundation for a formal constitution, and it is not unusual for judgments to be handed down as constitutional or unconstitutional.
Israel’s judiciary is first-rate and enjoys widespread worldwide respect, although it seems not so much by the current Israeli government.
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