Israeli parliament passes law to limit judicial power
nytimes.com
nytimes.com
"To understand events in Israel, there is just one question to ask: what limits the power of the government? Robust democracies rely on a whole system of checks and balances. But Israel lacks a constitution, an upper house in the parliament, a federal structure or any other check on government power except one — the Supreme Court. This Monday, the Netanyahu government plans to pass the first in a series of laws that will neutralise the Supreme Court. If it succeeds, it will gain unlimited power.
Members of the Netanyahu coalition have already disclosed their intention to pass laws and pursue policies that will discriminate against Arab people, women, LGBTQ people and secular people. Once the Supreme Court is out of the way, nothing will remain to stop them. In such a situation, the government could also rig future elections, for example by banning Arab parties from participating — a step previously proposed by coalition members."
A government whose power is not limited by checks and balances is called an authoritarian government.
Sigh.
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[a] https://www.amazon.com/Sapiens-Humankind-Yuval-Noah-Harari/d...
[b] https://www.ft.com/content/b027a525-05b1-45fc-a2c2-f131d341b...
The reality is that Harari and secular Jews realize that over the next 50 years they are toast in democratic elections due to simple demographics. They need to figure out ways to protect things which they care about, and the Supreme Court is how they do this.
Yes secular Israelis could very well be toast if trends continue. What exactly do you think will be the fate of the messianic elements in that scenerio? On that note, happy tisha beav.
Talking about authoritarianism in Israel is useless as it suggests that there is something related to Russia or China or Cuba or Iran, but the reality is that the elections are pretty free, there is no rigging and it is simply people voting for programs they want.
I am sympathetic to secular Israelis(they are the economically productive element of the country) but I don't like the insinuation that liberal democracy is the only form of democracy, especially since Israel doesn't have a written constitution.
> but I don't like the insinuation that liberal democracy is the only form of democracy, especially since Israel doesn't have a written constitution.
I feel like these things go hand in hand. An enormous amount of historical precedent suggests concentration of power and illiberalness tends to erode election freedom, even when preceded by free elections.
You have it exactly backwards: the government is selected from the MPs and is supported by the parliament. The most popular way to change a government is to call for (legislative) elections. (No executive elections — these were tried for a short period and cancelled.) The government is controlled by the parliament, not the other way around.
However, there is the 49% of parliament that constitutes the opposition. Israel used to have norms where the opposition had some balancing power. Today they have absolutely none.
There are no checks and no balances on the government/parliamentary majority except for the courts.
Israel is a parliamentary democracy, and the power is vested with the majority of the parliament. As it is with any other parliamentary democracy, which is the preferred system across almost all of Europe. (We can add "parliamentary constitutional monarchies" where the monarch does not have any real power to that list.)
I also don't see what "balancing power" had any opposition have in the past. The coalition (majority) tries to advance some issues while the opposition (minority) tries to torpedo them. It has always been that way, there is absolutely nothing new here.
The legislative has never been weaker (minority) and never been more authoritarian (majority).
Glad we can all agree on something.
The coalition and the government are one, in effect, mainly due to coalition discipline.
A good example of that is the recent vote for elimination of Reasonability, where all of the members of the coalition voted for it. Do you honestly believe there's no one person in the coalition who opposed it?
Isn't that totally ordinary for parliamentary democracies? Don't they literally work by having the leader parliament wear the executive hat in addition to his legislative one?
The hard distinction between the legislative, executive, and judicial branches is (mostly) an Americanism.
> Harari's point is that there is no force to counterbalance the executive other than the courts. If there was the court could possibly be weakened with democracy remaining somewhat intact. But of course the goal is not to restore checks and balances but unlimited executive power.
It's kind of interesting to see how the liberal zeitgeist's view of "checks and balances" shifts radically based on the context. In the US, a lot of liberals have been fantasizing furiously for the past several years over parliamentary systems that lack them, because in the US the "checks" have recently been thwarting the liberal political agenda.
Honestly, I think a lot of liberals would actually prefer a "democracy" closer to Iran's system; where there are "elections," but ultimate power rests with a liberal "Guardian Council," so the outcome is liberal regardless of the election results.
If any one of the branches has too much power there is a problem. I don't know if the right-suggestions are better, but I understand what they are fighting for.
For the US citizens: imagine that SCOTUS turns down affirmative action — not because "this Court has found affirmative action unconstitutional under the 14th Amendment's Equal Protection Clause", but because "this Court has found affirmative action highly unreasonable".
Imagine a US without a constitution, but instead it just has a big body of case law and precedent to go on. The judiciary's role is to adjudicate when that case law contradicts itself, and to decide if a given new law contradicts the rest of the case law.
The Knesset is limiting the judiciary's ability to review such things, which to an American is now analogous to Marbury v Madison being decided unconstitutional.
Amazing how, even here, the arguments made about this issue are disingenuous to outright misleading.
The Supreme Court is doing a good job determining where a law contradicts a Basic Law, and invalidating that law because of a contradiction. E.g. Surrogacy law was returned to the legislative — not since it was "unreasonable", but because it was unequal. (The legislative fixed the law to include homosexuals, and the law passed.)
The "unreasonableness" clause is not the only tool SC has at their disposal. From now on, they can use the other tools — just not "we find this unreasonable".
> are disingenuous to outright misleading
HN Guidelines: "Assume good faith."
That's an over simplistic representation, which you may have done in good faith. The coalition MPs are making it very hard to assume that they spread this narrative in good faith.
The notion of Reasonability or Reasonableness is a well established legal principal [1]
There is lots of handwaving about how they are technically just interpreting the Constitution and federal law, but the U.S. Supreme Court has made political, subjective decisions for as long as the court has existed.
Now, if SCOTUS explicitly and deliberately violated the Constitution, that would be... something. But this is impossible in Israel, from what I understand.
UK, notably, also has no constitution — it however wouldn't be reasonable to argue that "the only democracy keeper [in the UK] is the supreme court".
Exactly. IIRC, the UK didn't have anything called a "Supreme Court" until very recently (its highest "court" used to be a committee in the upper house of parliament), and even then it's clearly subordination to Parliament:
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_Ki...:
> The United Kingdom has a doctrine of parliamentary sovereignty,[6] so the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation [Acts of Parliament] made by Parliament. However, as with any law court in the UK, it can overturn secondary legislation [an American translation may be executive orders and agency regulations] if, for an example, that legislation is found to be ultra vires to the powers in primary legislation allowing it to be made.
The UK is a monarchy, so... In all seriousness, I don't know enough about UK law and government structure, but if I take what you said in face value, it may very well be that the UK's democracy is held by norms, and not government structure. That doesn't make it OK. It just means that they're prone to fall like other post democratic nations.
It's not about high political principles or abstract questions of balance of power. It's conservatives mad that the supreme court keeps finding settlements illegal.
That's it. That's all it is. That's why they care about it now, as opposed to any other time in Israel's history. The ultra Zionists are in power and they want to cement as much Jewish settlement for as long as they can.
That's what this is. It's simple.
Similar to what the Republican party is trying to achieve, but by stacking the Supreme court (done), having them rubber stamp vastly increased presidential powers and locking up the presidency though gerrymandering (partially done).
So which court and check and balance would oversee something like this?
Edit: Looks like they can still overrule laws and regulations but just can't use "reasonableness" to overrule. I agree this gave the courts unlimited power.
I'd just love to see a religious state that can act liberally & broadly.
Did you know that the fundamental building blocks of humanity came from religion? For example, let's start with "law".
Israel occupied territories as part of a war in 67 from Jordan. It wanted parts of that land which made sense as it was a very thin border so the liberal party started settling there. However, Israel never annexed those areas and kept them occupied. Why?
Because then the millions of Palestinians living there would get Israeli citizenship and voting rights. This is good and bad. It's good because "supposedly" Israel will give them independence one day. It's bad because it's really a dirty trick. Israel used Jewish settlements where the settlers did have citizenship to slowly grab lands while keeping the Palestinians under marshal law. Yes, there are nuances but that's the gist, 3 million people under marshal law yet Israel still calls itself a democracy.
How come?
The supreme court which is supposedly independent and a very strong human rights law. But both were used as a mask to whitewash the fact that it's been decades with no progress...
The right wing wants to annex these areas. This would be legal. But it doesn't want to give the Palestinians Israeli citizenship, that would be VERY illegal and is considered insane. Even the problematic supreme court that we have wouldn't let that happen. That's why they need to destroy it.
In the meantime, our prime minister (AKA crime minister) is pretty corrupt. Not an unusual sight around here. He's on trial but refuses to abdicate, his solution is to burn the courts to the ground so he doesn't go to jail.
They are doing this one piece at a time so people don't see what they're doing, but effectively they're removing the power of the courts and they plan to install their own judges. Effectively eliminating any oversight since we have only one house of parliament.
This is the problem - the supreme court is very leftist and has the "authoritarian power" to reject any bill they deem "unreasonable". This is what they are fighting about.
Ultimately the fight is about what happens to the state when the majority is religious, which is a demographic inevitability given current trends.
But they're perceived as Liberal by the right since they need to blame someone for the pragmatism of their own MPs.
> Ultimately the fight is about what happens to the state when the majority is religious, which is a demographic inevitability given current trends.
Yes. Although they don't need a majority. All they need is enough non-religious useful idiots who think this is about right vs. left...
With Trump, I noticed the perspective of international observers was very different than mine on the ground in Florida/Texas. The legitimate grievances that blossomed into the craziness, and decades of partisan priming, weren't really acknowledged.
Now I feel like I'm on the other end. This judicial thing seems like a crazy change for Israelis to support, but maybe it makes some sense from the inside.
The right has been in power almost continuously since 1977 (with a few short terms in between). Yet policies are far from what they promise. The right blames the liberals similarly to the "deep state" claims you see in the states. The judiciary is a major part of that.
Ironically the judiciary today is very right wing and protects them from external criticisms.
Essentially, when you actually gain power and have to take responsible action, you see that the right wing biblical fantasies can't end well for the county in reality.
The problem today is that many of those right wingers who are also religious fundamentalists are now in power, and they care not about this world but about the next [2], so they're willing to make the sacrifice.
[1] https://en.wikipedia.org/wiki/Basic_Law:_Human_Dignity_and_L... [2] https://he.wikipedia.org/wiki/%D7%97%D7%96%D7%95%D7%9F_%D7%9... (It's only in Hebrew, but Google Translate is your friend)
When people complain that both parties are exactly alike I groan. That's "good government". People make reasonable decisions which are the same in almost all cases, just some nuanced differences but the general direction is based on consensus.
What we have now isn't right wing. It's far right fascists and autocrats who are holding the Likud party like a puppeteer.
But the distrust I can understand. In the U.S. some legitimate systemic problems (especially in rural areas) and surpressed issues/controversies built up institutional skepticism among conservatives. Bad actors (on the extreme left and right) amplified it and turned it to obsession. The pressure was always there, ready to explode for years, but Trump just tapped it particularly well.
He isn't 100% wrong. As a person who lives in Tel Aviv I'm a liberal and an atheist. I have almost nothing in common with a settler in the west bank. But there was a status quo and he smashed it with a jackhammer.
"Left wing" israeli here..
https://en.wikipedia.org/wiki/List_of_Israeli_public_officia...
Even if the law passed now might have only the tactical goal of promoting Aryeh Dery once more, it certainly will allow the government to do unsanctioned in the future other things that could be much more harmful.
Sort of unreasonable, really. I'm sure the Palestinians would be more than gracious if they ever achieved significant power.
I sympathize with the desire for a Jewish state but the United States has supported them to the hilt in human rights abuses, war crimes and expansionism that aren't related to that goal.
Ignoring the recent shenanigans, the Russians are a non-issue and the Israelis aren't much helping with that anyway. I have no idea why support continues. It's difficult to formulate an explanation that doesn't come off as whackjob conspiracy-theorist.
As for a "two-state solution"... it was never much of a solution for the Israelis. The other state soon outnumbers them, and they're right back to where they were in the 1960s, but with fewer options and less advantage. Same but for details with a one-state solution. If they ever pretended to accept the two-state solution, it was only to string things along as much as possible. I'm not sure why anyone ever thought it was genuine.
Once this government has been established, they started pushing their reform, which has caused many to switch sides. Recent polls show that the coalition wouldn't win an election, if it would be held today.
What do you say to the now majority of the people that don't approve of the government's actions? too bad that you made that mistake of trusting those guys?
In a truly democratic country, the elected government should have power, but it must be held in check by powerful institutions like the supreme court.
The representatives + public initiative/referendum system seems like a "full demoracy", or as close as is practically possible.
They were founded on a jewish identity. Changing is not a possibility. Too many wars and conflicts have baked them to remain an ethnostate.
https://www.vox.com/world/2018/7/31/17623978/israel-jewish-n...
> The law does three big things:
> It states that “the right to exercise national self-determination” in Israel is “unique to the Jewish people.”
> It establishes Hebrew as Israel’s official language, and downgrades Arabic — a language widely spoken by Arab Israelis — to a “special status.”
> It establishes “Jewish settlement as a national value” and mandates that the state “will labor to encourage and promote its establishment and development.”
I don’t know enough to know the precise qualification for an ethnostate vs not but that first item clearly indicates that Israel is at minimum a country legally stratified by ethnicity.