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 The Basic Law was enacted as just another ordinary law – and ordinary legislation can be superseded by any subsequent law, even without a special override provision.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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Finally, a peace plan that takes Resolution 242 seriously

Ever since the Trump administration published its Mideast peace plan, critics have vociferously claimed that it “violates U.N. resolutions” and “challenges many of the internationally agreed parameters” guiding peacemaking since 1967. Nothing could be further from the truth. In fact, this is the first plan that actually relates seriously to the document every plan cites as the basis for those parameters: U.N. Security Council Resolution 242.

The resolution was adopted in November 1967, five months after Israel captured the West Bank, Gaza Strip, Golan Heights, eastern Jerusalem and Sinai Peninsula in the Six-Day War. But contrary to popular belief, it was carefully crafted to let Israel keep some of this territory by demanding a withdrawal only from “territories occupied in the recent conflict,” rather than “the territories” or “all the territories.”

As America’s then U.N. ambassador, Arthur Goldberg, later said, the omitted words “were not accidental … the resolution speaks of withdrawal from occupied territories without defining the extent of withdrawal.” Lord Caradon, the British ambassador to the United Nations who drafted the resolution, explained, “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.”

The reason was that, in the resolution’s own words, a “just and lasting peace” would require “secure and recognized boundaries” for all states in the region. But the 1967 lines (aka the 1949 armistice lines) did not and could not provide secure boundaries for Israel. As Goldberg explained, the resolution called for “less than a complete withdrawal of Israeli forces” precisely because “Israel’s prior frontiers had proved to be notably insecure.” And since Israel had captured these territories in a defensive rather than offensive war, the drafters considered such territorial changes fully compatible with the resolution’s preamble “emphasizing the inadmissibility of the acquisition of territory by war.”

But then, having successfully defeated the Arab/Soviet demand that Israel be required to cede “all the territories,” America abandoned its hard-won achievement just two years later, when it proposed the Rogers Plan. That plan called for an Israeli withdrawal to the 1967 lines with only minor adjustments (since nobody back then envisioned a Palestinian state, the West Bank would have returned to Jordan, even though Jordan had illegally occupied it in 1948).

This formula made a mockery of Resolution 242 because it failed to provide Israel with “secure boundaries.” Yet almost every subsequent proposal retained the idea of the 1967 lines with minor adjustments, even as all of them continued paying lip service to 242.

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