Analysis from Israel

The heated debate over a bill to let the Knesset override Supreme Court decisions that overturn laws drove home a shocking fact: An entire generation has now grown up believing a law approved by a mere quarter of the Knesset actually constitutes binding constitutional legislation.

Back in 1992, when the Basic Law: Human Dignity and Freedom passed by a vote of 32-21, the idea that a law enacted with less than half the 120-member parliament even present and just a quarter voting in favor could be used by the court to overturn subsequent legislation passed by much larger majorities would have flabbergasted most Israelis. That’s precisely why so few MKs showed up to vote. On consequential votes, the entire house turns out. But few MKs in 1992 considered this bill terribly consequential.

Why? Because normal democracies – which Israel was until 1992 – understand that binding constitutions require approval by super-majorities, not minorities. No other democracy worldwide has ever treated legislation passed by a minority of parliament as a binding constitution.

Nor has any other democracy ever adopted a constitution “almost secretly,” as then-Supreme Court President Aharon Barak famously described Israel’s process. Normal democracies understand that constitutions must be adopted intentionally – meaning by people who know they’re voting on a constitution. In contrast, most people in 1992 viewed Basic Laws not as a binding constitution, but merely as candidates for inclusion in a future constitution. That’s why courts had consistently ruled that previous Basic Laws didn’t authorize them to overturn subsequent legislation. Thus few MKs imagined this law would be treated differently. If they had, they might well have voted it down.

This brings us to the oft-heard claim – repeated in a Jerusalem Post editorial last week – that the bill enabling the Knesset to override the Basic Law is “anti-democratic.” This would be questionable even if Israel had a valid constitution: Canada lets its parliament override the constitution, and nobody challenges Canada’s democratic credentials.

But it’s downright ridiculous when the “constitution” at issue doesn’t meet the two most basic standards for constitutional legislation: approval by a large majority, and approval by people who knew they were actually enacting a constitution. The Basic Law was enacted as just another ordinary law – and ordinary legislation can be superseded by any subsequent law, even without a special override provision.

What really is anti-democratic, however, is that an unelected Supreme Court has taken a law never intended as a binding constitution and turned it into one. Granted, the Knesset has cravenly acquiesced in this judicial power grab for 22 years, due to fears of being deemed “anti-democratic” by the legal and academic elites who cheered the court’s bloodless coup. But that doesn’t change the fundamental, anti-democratic fact that Israel is the world’s only “democracy” whose constitution was imposed by judicial fiat rather than knowingly adopted by the public’s elected representatives.

Moreover, as the Post’s editorialist correctly noted, few things endanger democracy more than undermining democratic institutions. Yet nothing has undermined Israel’s democratic institutions more than the court’s decision to impose this Basic Law as a constitution.

Over the past two decades, the court has repeatedly overturned government policies on issues that most democracies leave to their elected representatives – ranging from welfare policy to defense – by claiming that these policies violate the Basic Law. But controversial policy issues usually involve competing values, any of which could theoretically be subsumed under the Basic Law’s vague wording. Thus in many cases, the court has simply substituted its own value judgments for those of the public’s elected representatives. It has thereby made itself just another political player, no more worthy of respect than ministers or MKs, while also alienating sizable sectors of the public that disagree with its hierarchy of values.

This has had three pernicious consequences. First, public trust in the court has plummeted: Only 56% of Israeli Jews expressed confidence in the court in 2013, down from 80% in 2000. This undermines its ability to play the vital role courts normally play in democratic societies – as a trusted venue for resolving disputes peacefully, thereby reducing the likelihood of violence.

Second, the court’s behavior has damaged Israelis’ faith in democracy. Democracy rests on the premise that change can be effected peacefully by persuasion: Convince enough people that you’re right, and they’ll elect a government that will make the desired change. But that premise no longer holds if an unelected court routinely overrules government decisions by claiming they violate a “constitution” of the court’s own making.

Finally, it has undermined the very respect for human rights that elevating the Basic Law to constitutional status was supposed to reinforce. Nothing illustrates this better than the law the override bill is aimed at reinstating, which allows illegal migrants to be held indefinitely at the open detention center in Holot. I actually agree with the court that this law is problematic. But as I noted last year, after it overturned an earlier version of the law, the court forfeited its authority when it chose to become just another political player. Among large parts of the public, its views on human rights now carry no more weight – and sometimes less – than those of any politician.

Even worse, the court’s abuse of the Basic Law to impose its own value judgments on the government has gutted the very idea of “human rights”: Many Israelis – particularly younger ones, who have grown up in this world the court created – now see human rights not as a positive good, but as a term devoid of any real content whose sole purpose is to justify any policy the justices want to impose.

Thus the real problem with the override bill isn’t that it’s “anti-democratic” – which it isn’t. It’s that it does nothing to ameliorate any of these very real evils.

Undoing two decades of judicial overreach won’t be easy. But there’s only one logical place to start: Stop treating a Basic Law passed by a mere quarter of the Knesset as a binding “constitution.” If Israel is ever to have a constitution, it must be adopted the same way other democracies adopt theirs: openly, in full knowledge, and by a super-majority.

Originally published in The Jerusalem Post

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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