Analysis from Israel

Legal Issues

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

The best-known example is the ill-fated experiment with directly electing the prime minister in the 1990s, which was repealed a decade later. The initial proposal, which also called for directly electing some Knesset members, might have worked. But the hybrid ultimately adopted, under which Israelis voted for an individual as prime minister but a party for Knesset, encouraged many people to split their votes, leaving the prime ministerial candidates’ parties decimated. Prime ministers therefore had to create fragmented coalitions in which their own parties were often a minority, making it harder to govern.

A less known but particularly salient example is a seemingly innocuous reform enacted in 2016. The rule until then was that after an election, the longest-serving Knesset member would temporarily become Knesset speaker until a new government was formed, after which the government would choose a permanent speaker. Under the amendment, the old speaker simply stayed on until a new government was formed and chose a new speaker.

The change seems both trivial and sensible. Why bother with a temporary speaker for a mere few weeks—someone who doesn’t yet know the ropes and will be gone before he learns them—when an experienced speaker could just serve a few weeks longer?

Yet this picayune change ended up producing the worst constitutional crisis in Israel’s history. This past March, a new Knesset majority wanted to elect a new speaker to further passage of its own hasty amendments to the Basic Laws. The existing speaker wanted to postpone the election until the new government’s composition became clear because once elected, a new speaker is virtually impossible to replace, and an opposition speaker could stymie all the government’s work. This dispute led to the High Court of Justice riding roughshod over the separation of powers by not only creating a new constitutional arrangement in which two speakers would serve simultaneously (though one would be limited to running the vote for a new permanent speaker), but even dictating the second speaker’s identity.

All of this would have been avoided had that seemingly trivial amendment not been passed: The opposition wouldn’t have needed to elect a new speaker, since the old speaker would immediately have been replaced with a temporary one. And there would have been no risk of a speaker in permanent opposition to the government, because a new government would have been able to replace the temporary speaker.

In other words, this seemingly pointless provision embodied a careful balancing act between a new majority’s desire to govern and a government’s need to function, and its elimination sparked a constitutional impasse.

The amendments the new unity government is making to the Basic Laws—meant to create complete parity between Netanyahu and Gantz, as well as ensure that the prime ministry rotates between them in another 18 months—are much more far-reaching. For instance, both the prime minister (initially Netanyahu) and the vice premier (Gantz) will appoint the same number of ministers, and neither can fire the other’s appointees. If either one dissolves the agreement, the other automatically becomes premier. But if one is barred from serving for reasons beyond his control (excluding specified reasons such as serious illness), the second may not become premier, effectively forcing new elections. And so on.

To be fair, some of these grotesqueries stem from Israel’s rampant judicial activism. Specifically, that last-named provision is motivated by the High Court’s explicit threat to disqualify Netanyahu due to his indictments. Under current law, the vice premier automatically replaces an incapacitated prime minister, meaning Gantz would have become prime minister for the entire term, leaving Netanyahu’s bloc—more than two-thirds of the unity government’s members—out in the cold.

Yet many provisions simply reflect the deep distrust between Netanyahu and Gantz. And while some will expire automatically when this Knesset’s term ends, others won’t, planting potential constitutional time bombs for future governments.

Even when alterations to a system of government are carefully thought out, exhaustively debated and not tailored to specific personal needs, history proves that they sometimes fail spectacularly. The risks are all the greater when changes are rammed through hastily, with no time for thought or debate, merely to serve specific political circumstances.

Thus even if these changes are necessary in today’s unusual political circumstances, they must all be carefully reconsidered immediately after the next election, and probably repealed. Because any country tinkers with longstanding constitutional arrangements at its own peril.

This article was originally syndicated by JNS.org (www.jns.org) on April 29, 2020. © 2020 JNS.org

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.

Granted, the ruling was hypocritical; the court never cared about majority rights when rightists were the majority. Moreover, the new majority wanted the speakership primarily to pass ad hominem legislation barring Netanyahu from forming a new government, and I obviously don’t approve of prioritizing anti-Netanyahu legislation over both ironclad parliamentary precedent and fighting a pandemic. But elections have consequences. And hounding Netanyahu is exactly—in fact, almost exclusively—what this majority was elected to do.

Nevertheless, judicial intervention in the legislature’s internal affairs obviously sets a troubling precedent. Thus Edelstein, who has consistently fought executive branch encroachments on parliament (he once even threatened a parliamentary boycott of the Independence Day ceremony if Netanyahu usurped the Knesset’s leading role), considered it crucial to send a strong message against judicial encroachment as well.

Displaying the guts and smarts he honed against the Soviet Union, the former Prisoner of Zion came up with a brilliant solution: He resigned. He thereby upheld both parliament’s independence and the court’s ruling.

Resigning ensured that the substance of the court’s ruling would be obeyed: A new speaker would be elected promptly. But the vote would stem from standard parliamentary procedure—that’s simply what happens when a speaker resigns—rather than court order. And it would follow the standard parliamentary timetable—48 hours after the resignation was submitted, meaning March 27 at the earliest (and more likely March 30, the first regularly scheduled session after the resignation took effect)—rather than the court’s March 25 deadline.

Yet that wasn’t good enough for Israel’s imperial judiciary. In an unprecedented intervention into parliament’s affairs, the court adopted an unconstitutional “solution” proposed by Yinon: It appointed a “temporary speaker” and ordered him to hold a vote on a permanent speaker by March 25.

It’s impossible to overstate how outrageous this is. First, the ruling flagrantly violated the Basic Law: The Knesset, which the court itself deems constitutional legislation. This law mandates a single Knesset speaker, but the court created two speakers serving simultaneously: Edelstein, who by law retained full powers until his resignation took effect, and the temporary speaker, whose authority would be limited to holding a vote on a new speaker.

Moreover, the Basic Law says the Knesset should elect its own speaker. But the justices appointed the “temporary speaker,” Amir Peretz, themselves.

Finally, implementation of court orders is often delayed for various reasons, and the court routinely grants extensions, often lengthy ones. Yet in this case, rather than accept a trivial delay of two to five days, the justices effectively seized control of another branch of government.

Anyone who cares about democracy should be appalled by this. And the fact that leftists overwhelmingly supported it shows that their professed concern for “democracy” is mere camouflage; what they want is a judicial dictatorship.

It’s unclear what would have happened next had Gantz not correctly concluded that Israel couldn’t afford a full-blown constitutional crisis while a pandemic raged and taken swift action to defer it: He ditched his bloc’s former candidate for speaker, nominated himself for the job, and announced that he would join a unity government under Netanyahu. This ensured that the speakership will remain in the government’s hands. It also temporarily precluded an all-out court-Knesset war, since his condition for unity was maintaining the legal status quo—a price Netanyahu agreed to pay because he, too, considers the coronavirus top priority right now.

But if rightists were angry at the High Court before, they’re incandescent now. Whenever the next election is, this will be a voting issue. If the right wins, it will pass legislation to restrain the court. And since the court won’t let its excessive power be curbed without a fight, it will undoubtedly retaliate by declaring the legislation unconstitutional.

In other words, the constitutional crisis has merely been postponed, not resolved. And it’s likely to get very ugly before it’s over.

This article was originally syndicated by JNS.org (www.jns.org) on April 1, 2020. © 2020 JNS.org

March 16 was the deadline for filing briefs on whether the International Criminal Court should recognize Palestine as a state. But important though that question is, the ICC prosecutor’s decision to open a criminal investigation against Israel poses a much bigger problem: Contrary to the court’s stated mission of trying to reduce the harm caused by war, it may well result in even higher casualties and more extensive property damage.

Like all Western countries, Israel makes great efforts to uphold customary laws of war, including by trying to minimize civilian casualties. As a group of high-ranking Western military experts wrote in a report on the Hamas-Israel war of 2014, Israel “met and in some respects exceeded the highest standards we set for our own nations’ militaries.” In fact, Israel has historically caused fewer civilian casualties and less property damage than other Western armies.

Many Israelis actually resent this, arguing that the restrictions imposed on the army’s use of force put Israel’s own soldiers and civilians at greater risk. And the Israel Defense Forces’ vehement denials can’t necessarily be taken at face value since it would hardly admit to putting Israelis at risk. Yet even assuming these denials are truthful, the fact that many Israelis believe otherwise means that the army is under constant pressure to be less stringent about using force.

Until now, however, it has had a strong counter-argument: These restrictions aren’t so onerous as to make effective military action impossible, and obeying them keeps our soldiers and politicians out of international legal trouble. Consequently, it’s worth the effort.

But now, ICC prosecutor Fatou Bensouda has declared that all the IDF’s efforts were worthless: In her view, it committed prima facie war crimes both during the 2014 war and in subsequent military operations in the Gaza Strip. In other words, meeting or even exceeding the West’s “highest standards” is no longer enough to keep you out of legal trouble.

The court’s supporters have a facile response to this: Israel must simply meet even higher standards, and then it will be fine. But in reality, as previous ICC decisions have made clear, the court considers virtually any civilian casualties unacceptable.

That’s precisely why its pretrial chamber of judges has twice demanded that Bensouda reconsider her decision not to prosecute Israel over its 2010 raid on a flotilla to Gaza. The soldiers were enforcing a blockade that even the United Nations deemed legal, and as Bensouda noted in her decision to dismiss the case, they opened fire solely in self-defense after nine of them were seriously wounded when passengers aboard one ship attacked them with knives, chains, wooden clubs, iron rods and slingshots. But the pretrial chamber dismissed this context as completely irrelevant, insisting that the resultant 10 deaths were a criminal massacre.

Nor is the ICC alone. Zero civilian casualties is also the standard increasingly promulgated by other self-appointed custodians of the laws of war. The International Committee of the Red Cross, for instance, has declared that attacking a “populated village” is forbidden under any circumstances, even if the enemy is hiding there.

Bensouda fought the pretrial chamber over the flotilla case for years because do otherwise would be to abdicate her own prosecutorial independence and grant the chamber the right to dictate her decisions. But it’s hardly surprising that she preferred to avoid another exhausting battle with the chamber over Israel. It was much easier to simply adopt its “no civilian casualties ever” standard and prosecute Israel for its Gaza operations.

Yet zero or near-zero civilian casualties are an impossible standard when, for instance, Palestinians routinely launch rockets from populated areas at Israeli civilians, or bring babies and grandmothers to violent protests where other “demonstrators” are throwing bombs and Molotov cocktails at soldiers in an effort to breach the border. The only way any country could avoid civilian casualties in such situations would be to refrain from military action at all—or in other words, to let the enemy breach its border and attack its own soldiers and civilians while doing nothing to try to stop it. Indeed, near-zero civilian casualties isn’t a standard any military in any conflict has ever been able to meet.

Thus by saying that even compliance with the highest Western standards isn’t enough to protect Israel from prosecution, the ICC has essentially said there’s no point in even trying to uphold the laws of war, because as the ICC interprets them, they are incompatible with the most basic requirements of self-defense. Unless Israel is willing to sit with folded hands while Palestinian terrorists attack it—which it will never do—it has no hope of escaping the ICC’s clutches. And if so, why bother adhering to stringent restrictions that expose its own soldiers and civilians to greater risk?

Moreover, as I’ve explained before, activist courts always seek to obtain widely applicable precedents by going after “easy” targets first, and for the ICC, Israel is obviously an easier target than, say, America or France. Thus assuming the court upholds Bensouda’s position on Gaza—which, given its proven anti-Israel bias, it’s certain to do—this precedent could and would be used against every other Western country that engages in military operations since other Western armies use the same tactics and the same precautions that Israel does. This could lead other Western militaries to conclude that efforts to abide by the laws of war have become pointless.

In short, by going after Israel despite its adherence to the West’s “highest standards,” the ICC could end up reversing more than a century of efforts to reduce the collateral damage of military action. That would lead to even higher civilian casualties, the antithesis of its purpose.

All law is based on two fundamental principles: that compliance is possible without leaving yourself or your country vulnerable to destruction; and that compliance protects you from legal trouble. If those two criteria aren’t met, nobody would have any reason to obey the law.

The ICC’s decision to prosecute Israel eviscerates both those principles. And as such, it’s liable to destroy the very international law it was created to uphold.

This article was originally syndicated by JNS.org (www.jns.org) on March 18, 2020. © 2020 JNS.org

Israel’s High Court created the problem that drove tens of thousands of voters into Benjamin Netanyahu’s arms. The result could be a government willing to enact legal reforms that the court bitterly opposes.

Though Israel’s final March 2 election results still aren’t in, one thing is clear: Prime Minister Benjamin Netanyahu did significantly better than he did in September, and his bloc is close to having enough seats to form a new government. That’s a far cry from saying he’ll actually be able to form one. But if he does, the legal system will be hoist with its own petard—namely, repeated court rulings that, in defiance of the actual law, barred lame-duck governments from doing almost anything of importance.

To understand why, it’s first necessary to understand how Netanyahu’s bloc gained three to four seats since September, all of which went to his own Likud party. Granted, many Israelis either don’t believe the indictments against him or don’t consider them serious enough to justify ousting someone they consider an excellent prime minister, but all those people also voted for him in September.

The tens of thousands of Israelis who switched their votes on March 2 didn’t do so because they used to think Netanyahu was guilty but are now convinced he’s innocent, or because they used to think Netanyahu was a lousy prime minister but are now convinced he’s brilliant. Rather, most are former Netanyahu supporters who grew disgusted with him—enough that they either stayed home or voted for his rival in September.

But they’re even more disgusted by Israel’s third election of the past year and the ongoing inability to form a new government; they’ve become convinced that even a bad government is better than no government. And the anti-Netanyahu bloc had no realistic chance of ever forming a government because too many of its constituent parties refuse to sit at the same cabinet table either with each other or with any of the parties that could potentially be wooed away from Netanyahu. Thus the only way to increase the chances of a government being formed this time around was to give Netanyahu’s bloc the few extra seats it needed.

But why would these voters care so much about having a new government? After all, the country is basically functioning under Netanyahu’s lame-duck government, which remains in office until a new government is formed despite having lost its parliamentary majority last year.

Unlike in America, there’s no such thing as a government shutdown in Israel. Public services continue functioning even without an approved budget because they’re automatically funded every month to the tune of one-twelfth of the previous year’s budget. The army still defends the borders and fights terror. Netanyahu still travels the world expanding Israel’s diplomatic relations.

Nevertheless, there are many things a lame-duck government cannot do. It can’t make appointments, so senior civil-service posts have been empty for a year. It can’t pass a new budget or allocate any funding that wasn’t included in the previous year’s budget, so vital new programs—like the army’s five-year development plan and desperately needed infrastructure projects—have gone unfunded. And vital old programs, including pilot projects to help Israel’s neediest, have shut down because their funding was only approved for a year and a lame-duck government can’t renew it. The government also can’t address the yawning deficit by cutting spending or raising taxes.

To be clear, Israeli law doesn’t actually prevent a lame-duck government from doing any of this. Moreover, as the High Court of Justice admitted in a 2001 ruling, this wasn’t an oversight; the Knesset considered this issue during the state’s early years, but ultimately accepted a public commission’s recommendation against restricting lame-duck governments, lest such restrictions hamper their ability to act in an emergency.

But the court, always convinced that it knows better than the legislature and scornful of that quaint democratic principle which holds that law should be made by elected legislators rather than unelected justices, decided decades ago to overrule the Knesset on this issue. True, lame-duck governments are formally empowered to do anything, it declared, but under other High Court rulings dating to the 1980s, no government action is legal unless the court also deems it reasonable, regardless of what the law says. And the justices, together with the successive attorneys general responsible for enforcing their dictums, have deemed a wide range of actions by lame-duck governments unreasonable.

To understand the absurd lengths to which this has been taken, consider one case now before the court: The government recently created a public commission to probe the Justice Ministry’s handling of police misconduct, but the attorney general nixed it, saying a lame-duck government has no such power.

Granted, the timing was political; Ethiopian Israelis, a community Netanyahu sought to woo, are furious with the ministry for what they see as its tolerance of police brutality against them. But so is every other constituency in Israel—left-wing, right-wing, Arab, ultra-Orthodox, you name it. Excluding the police and Justice Ministry staffers, there’s a wall-to-wall consensus that the ministry is soft on police brutality. So why bar a lame-duck government from a probe that most Israelis consider long overdue?

Adding insult to injury, the court, as always, is politically biased in enforcing its dictum. Back in 2001, for instance, it deemed it reasonable for Prime Minister Ehud Barak’s lame-duck government to reward PLO chairman Yasser Arafat for launching the Second Intifada by offering him most of the West Bank, the Gaza Strip and half of Jerusalem, despite overwhelming public opposition. But doing something all Israelis consider essential, like earmarking funds for new hospitals or roads? Absolutely not.

Had the court simply upheld the law and allowed lame-duck governments to exercise their full powers, Israel would not have accumulated such a long list of unaddressed burning issues over the past year, and a critical mass of anti-Netanyahu voters wouldn’t have concluded that any government—even one headed by a man under indictment—was better than none at all. In other words, with its own hands, the court created the very problem that may now result in a government willing and able to enact legal reforms that the court itself bitterly opposes.

Reasonable people can disagree over whether that outcome would be good or bad for Israel. But it would undeniably be poetic justice.

This article was originally syndicated by JNS.org (www.jns.org) on March 4, 2020. © 2020 JNS.org

The U.N. anti-Israel blacklist asserts that the most basic essentials—food, water, transportation, communication—raise “particular human rights concerns.” But if every human activity is a “human rights concern,” then nothing is.

If you want to understand just how outrageous the U.N. blacklist of businesses operating in Israeli “settlements” really is, forget for a moment about its anti-Israel bias and its warping of international law, important though these issues are. Instead, simply evaluate it on its own terms, as a compilation of companies engaged in “activities that raised particular human rights concerns.”

So what horrendous activities do these 112 companies engage in? Well, there are several supermarket chains, which sell groceries to both Israelis and Palestinians in the West Bank, Golan Heights and eastern Jerusalem. There are several fuel companies, which operate gas stations where both Israelis and Palestinians fill up their cars.

There are several bus and rail companies, which provide public transportation used by Israelis and Palestinians alike. There are phone companies (cell and landline) that provide general communications services. There are banks, which provide basic banking services. There’s a water company, which provides potable drinking water and sewage solutions.

There are also several food and clothing manufacturers, like General Mills, Angel Bakeries and Delta Galil, whose crime seems to consist of nothing but the fact that their cereals, bread and underwear can be found on supermarket shelves in the West Bank, Golan Heights and eastern Jerusalem.

In short, almost all the companies on the blacklist simply provide the most fundamental human necessities—food, water, transportation, communication. Some of these are defined by the United Nations itself as inalienable rights: Article 25 of the Universal Declaration of Human Rights states that “everyone” has a right to “food, clothing, housing and medical care and necessary social services”; there’s no asterisk saying “except for settlers.” Others, like transportation and communication, aren’t considered rights, but they are considered positive goods in any other context.

In contrast, the United Nations couldn’t find a single company engaged in “captivity of the Palestinian financial and economic markets” or “practices that disadvantage Palestinian enterprises, including through restrictions on movement, administrative and legal constraints”—something that might actually raise human-rights concerns. And only three were involved in providing “surveillance and identification equipment for settlements, the wall and checkpoints directly linked with settlements,” which at least sounds sinister if you don’t realize that such equipment is merely intended to prevent terrorists from slaughtering children in their beds (see the Fogel family, Hallel Ariel and many others).

To realize how absurd this list is, try a simple thought experiment. Syrian and Russian soldiers have been slaughtering civilians in Syria on an almost daily basis for nine years now; the death toll is more than half a million and counting. But does anyone think the supermarkets that sell these soldiers food or the water company that supplies their bases with running water are engaged in “activities that raised particular human rights concerns”? Of course not; we believe that even the worst murderers are entitled to food, water and clothing. That’s precisely why all countries provide such basics to criminals in jail.

Human-rights violations used to refer to grave crimes like murder, rape and ethnic cleansing. But now, along comes the U.N. Human Rights Council and says that actually, even the most essential human activities—food, water, transportation, communication—raise “particular human rights concerns.” This turns the very idea of “human rights concerns” into a bad joke: If every human activity is a “human rights concern,” then nothing is.

But the absurdity doesn’t end there. In a press statement accompanying the blacklist, the Office of the U.N. High Commissioner for Human Rights wrote, “While the settlements as such are regarded as illegal under international law, this report does not provide a legal characterization of the activities in question, or of business enterprises’ involvement in them.” Or in plain English, the activities in question aren’t illegal, nor are businesses violating international law by engaging them (since I’m analyzing the document strictly on its own terms, I’ll ignore its mischaracterization of the settlements themselves as illegal).

Hitherto, human-rights violations have been illegal under both international law and the legal codes of all Western countries (think murder, torture or rape). But it’s impossible to criminalize every ordinary human activity. That’s precisely why, as legal scholar Eugene Kontorovich has noted, international law doesn’t actually prohibit doing business in occupied territory—a position repeatedly upheld by European courts.

But now along comes the United Nations and says that actually, many things can be perfectly legal despite raising “particular human rights concerns.” So go ahead and violate human rights to your heart’s content.

There has been a lot of concern among Israel and its supporters that the blacklist will lead to boycotts and sanctions on the included companies. That’s one reason for the wall-to-wall condemnation it has elicited in Israel (the other being its patently discriminatory targeting of Israel; somehow, the United Nations hasn’t bothered publishing blacklists of companies operating in occupied northern Cyprus, occupied Western Sahara or any other occupied territory). Even the most left-wing of Israel’s Jewish parties, the Labor-Gesher-Meretz joint ticket, assailed the list’s publication unequivocally (to the dismay of Israel’s radical leftists).

Yet precisely because most of the targeted companies are basic service providers, the economic impact will likely be small. Most of these companies neither export and nor attract much foreign investment. And since their businesses depend almost exclusively on selling or providing services to Israelis (and Palestinians), the only way to boycott them would be for the boycotters to actually move to Israel.

Rather, the real danger comes from the way this blacklist cheapens the very idea of human rights. According to the U.N. Human Rights Council, there is effectively no difference between mass murder and selling groceries; both raise “particular human rights concerns.” That’s a standard that no minimally moral human being could take seriously. It turns “human rights concerns” into a laughingstock, and thereby undermines respect for all human rights, even the genuine ones.

And, as always, the biggest losers will be all the people worldwide suffering murder, torture, rape and other genuine abuses. For their cries will be drowned out by the din of the U.N.’s lofty crusade against supermarkets and gas stations.

This article was originally syndicated by JNS.org (www.jns.org) on February 19, 2020. © 2020 JNS.org

Although Israeli Prime Minister Benjamin Netanyahu was favored to win his Likud party’s leadership contest on Dec. 26, the magnitude of his victory surprised many observers. Despite his three indictments for corruption and his failure to form a government following two elections last year, 72 percent of primary voters chose him over a popular and respected challenger. To understand why, it’s worth examining a High Court of Justice ruling handed down the following week.

The court was asked by 67 academics, former defense officials and cultural figures to rule that due to the indictments, Netanyahu should be barred from forming the next government, even if Likud and its allies win the most Knesset seats in March’s election. The justices dismissed the petition as premature since the election results may render the question moot.

What they emphatically didn’t say, however, is that who the voters elect is none of their business, given that no existing law bars someone under indictment from forming a government, and the only relevant legislation implies the opposite: It requires serving prime ministers to resign if convicted.

Instead, by deeming the petition “premature” rather than non-justiciable, they made it clear that they would consider overturning the voters’ decision should the election results make the question relevant. Indeed, the ruling said so explicitly: The petition raises “an important issue of principle” that “touches on the principle of the rule of law, the integrity of elected officials and the public’s trust in government institutions … and therefore, there’s nothing to the respondents’ argument that the issue isn’t justiciable.”

Though I backed Netanyahu’s challenger in the primary, you shouldn’t have to be a Netanyahu fan to find this ruling shocking. The right to choose the country’s leadership in free and fair elections is the most fundamental democratic right of all. Thus the fact that the court considers itself entitled to overturn the voters’ choice without any authorization in law, merely because it disapproves of it, shows just how far Israel has slid down the slope from a democracy with a strong and independent court system to a judicial dictatorship. And while the primary predated this ruling, thousands of others over the past three decades have sent the same message.

Time after time, the legal system has vetoed elected governments’ policies not because they violated any law, but because the attorney general or the justices deemed them “unreasonable”—a decision actual democracies leave to the voters. Or contrary to some “right” that not only doesn’t exist in Israel’s Basic Laws, which the court (wrongly) treats as a constitution, but was explicitly omitted from them. Or contrary to “the fundamental values on which our system is based,” even when said values, like judicial supremacy, are diametrically opposed to the actual principles of Israel’s system of government (which, like its British model, is based on parliamentary supremacy).

Moreover, the legal establishment has a long and sordid record of submitting unwarranted indictments to oust ministers it dislikes. One particularly egregious example was Yaakov Neeman, who was forced to resign as justice minister in 1996 after being charged with perjury over minor mistakes in affidavits—like a date being given as 1992, rather than 1991—that he himself discovered, disclosed and corrected. As the trial court said in dismissing the case, indicting people for perjury over errors they voluntarily corrected would simply discourage others from admitting mistakes, thereby impeding the courts’ ability to discover the truth.

Thus it’s no surprise that only 55 percent of all Israeli Jews trust the Supreme Court, with a whopping 78 percent of rightists deeming it politically biased, while fewer than half of all Israeli Jews trust the attorney general. And this, judging by discussions with fellow Likud members before the vote, was a key issue in the primary.

Netanyahu didn’t win in a landslide because he has been an excellent prime minister, though most Likud voters (myself included) think he has. And he certainly didn’t win because Likud voters approve the behavior that led to his indictment; they find it repulsive, even if many doubt that it’s criminal (I’m in the minority in considering one of the indictments serious).

Rather, the most common argument I heard was simply this: “Ousting Netanyahu would mean letting them win.” In other words, Netanyahu the man no longer matters; he has simply become a symbol of the much larger struggle to regain the fundamental democratic rights that the legal establishment—the courts, the attorney general and the prosecution—has steadily usurped over the past three decades.

It may seem strange that voters should make their stand over a man facing serious indictments for corruption. But he has become the focal point of this battle precisely because the issue his case poses is so clear and simple: Do voters still have the right to elect whomever they please, even if their choice appalls other Israelis? Or can the legal establishment use indictments to overturn their choice of prime minister, even though that the law gives it no such right?

In fact, ironically enough, the charges against him actually increase Netanyahu’s value as a champion in this battle because they make legal reform vital to his own self-interest. Previously, many politicians, including Netanyahu himself, feared to enact legal reforms because the aforementioned false indictments frequently targeted those who, like Neeman, sought to do so. But now, curbing the court’s power is Netanyahu’s only chance of escaping jail; otherwise, even if the Knesset grants him immunity from prosecution, the court will certainly overturn its decision.

Anyone who claims to care about “the rule of law” and views Netanyahu’s potential election as a devastating blow to it ought to think long and hard about this: Millions of Israelis are willing to vote for a possible criminal because they see it as their only chance of curbing the legal establishment’s takeover of Israel’s democracy.

Had the courts not so consistently substituted their own will for that of the voters, Israel would never have reached this pass. And unless its excesses are curbed, the situation will only get worse, regardless of who wins the next election.

This article was originally syndicated by JNS.org (www.jns.org) on January 8, 2020. © 2020 JNS.org

There’s a straight line connecting leftists’ rejection of the settlements’ legality with rightists’ rejection of the indictments against Israeli Prime Minister Benjamin Netanyahu.

One of the modern era’s most dangerous problems is the conflation of politics with law. Political questions are increasingly treated as legal ones, which inevitably results in the law becoming politicized. Last week provided two salient examples.

One was the response to the U.S. State Department’s announcement that Israeli settlements don’t violate international law. What was striking was that many opponents didn’t actually challenge the department’s (correct) legal conclusions. Instead, they objected on policy grounds.

Democratic presidential candidate and former vice president Joe Biden, for instance, complained, “This decision harms the cause of diplomacy, takes us further away from the hope of a two-state solution, and will only further inflame tensions in the region.” Another leading Democratic candidate, South Bend Mayor Pete Buttigieg, termed the announcement “a significant step backward in our efforts to achieve a two-state solution.”

Rabbi Rick Jacobs, president of the Union for Reform Judaism, was particularly blatant. While acknowledging that the decision focused solely on international law, he worried that it “will be widely read as a broader change to the U.S. position on Israeli settlements,” which “would place serious and critical obstacles to a viable two-state solution.” Consequently, he urged the administration “to reverse its position.”

Essentially, all three want the settlements declared illegal simply because they think settlements are bad policy, regardless of what international law actually says. In other words, they’re incapable of distinguishing policy from law.

People who understand this difference have no problem with settlements being recognized as legal because they understand that something can be bad policy even if it’s legal. Indeed, that’s precisely what all administrations, both Republican and Democratic, did for roughly three decades between Jimmy Carter and Barack Obama: They vehemently opposed settlements on policy grounds while simultaneously acknowledging that they weren’t illegal.

Yet the concept of “it’s legal, but it stinks” has evidently gone out of style, especially on the left. When leftists think something stinks, they want it declared illegal, even if it’s not.

The advantages of this tactic are obvious. Policy questions, by definition, are disputable; indeed, many people disagree that settlements are bad policy. But law ostensibly eliminates controversy because once the courts rule something illegal, then everyone is supposed to accept that it must stop. Thus branding any policy one opposes as illegal is meant to make it politically illegitimate. If settlements are illegal, they mustn’t be built, even if they’re actually good policy.

Granted, this ploy has an inherent problem when it comes to international law since there are no recognized courts whose authority to make such judgments is universally accepted. Neither America nor Israel, for instance, ever agreed to accept the legal interpretations of the International Criminal Court, U.N. agencies or any other such body. And without an accepted arbiter, whether or not something violates international law is endlessly debatable.

But the bigger problem is this tactic’s enormous cost, which far outweighs any possible benefit: When people start branding anything they object to as “illegal,” they turn the law into just another player on the political battlefield. And once that happens, legal decisions will be treated with no more respect than any other political pronouncement.

Thus Americans who object to recognizing the settlements’ legality on policy grounds are destroying any pretensions that international law might have to objectivity and impartiality, just as the European Union did by insisting that international law requires labeling products from Israeli settlements, but not from Turkish settlements in northern Cyprus or Moroccan settlements in Western Sahara. In both cases, international law is being treated not as an objective, universally applied standard, but as a selective political tool to punish disfavored countries or policies. And as such, it deserves no more deference than any other political decision.

Given how amorphous international law actually is, that may be no great loss. But when the same tactics are applied to domestic legal systems, the consequences become devastating. Once a significant portion of the citizenry starts to view legal decisions as politics in another guise, the consensus on which democracy’s survival depends—that legal decisions must be honored—will rapidly erode.

As I’ve noted before, this is already happening in Israel. But last week’s indictment of Israeli Prime Minister Benjamin Netanyahu provides a particularly worrying example of the costs.

I’m the rare Netanyahu supporter who thinks that one of the three cases against him is actually serious. But for two understandable reasons, many supporters believe that he’s simply being persecuted by a leftist legal establishment frustrated by repeated failures to oust him through democratic elections.

The first is that the Attorney General’s Office and the courts have intervened in literally thousands of policy decisions over the past three decades, frequently in defiance of actual written law and almost always in the left’s favor. In short, both bodies have routinely behaved like political activists rather than impartial jurists. So rightists have no reason to trust their impartiality now.

Second, Netanyahu has been targeted by frivolous investigations—including, in my view, two of the three now going to trial—ever since he first became prime minister in 1996. All involved genuinely repulsive conduct on Netanyahu’s part. But rather than treating such conduct as a problem on which the public, rather than the courts, must render judgment, the legal establishment repeatedly opened cases against him, to which they devoted countless man-hours before finally closing them.

Now, the legal establishment says it has finally found a real crime. But like the boy who cried wolf, Netanyahu’s supporters no longer believe it.

The combination of these two factors means that many Israelis genuinely feel that their prime minister has been ousted by a corrupt legal establishment solely because it opposes his policies. And that will inevitably foster even greater distrust of the legal system.

Leftists spend a lot of time these days fretting about democracy’s possible collapse. But if they really want to avert such a collapse, the first step is to stop politicizing the law, so that legal institutions can regain public trust. For without a legal system whose decisions are widely respected, democracies will be left with no way of resolving disputes but the one shared by dictatorships and anarchies—plain old-fashioned brute force.

This article was originally syndicated by JNS.org (www.jns.org) on November 27, 2019. © 2019 JNS.org

On June 24, Haaretz columnist Amira Hass compared the case of Mahmoud Qatusa to the infamous Leo Frank case in Atlanta. The comparison was suggested by Qatusa’s lawyer, but Hass enthusiastically seconded it.

One day later, the dramatic denouement of Qatusa’s case proved them both wrong. And the story convincingly refutes claims that Israel has become increasingly racist and “anti-democratic” because it shows that the sine qua non of a flourishing democracy is alive and well—not the absence of problems, but the existence of self-correcting mechanisms to resolve those problems.

To understand why, a recap of both cases is needed. Frank, a Jew, was convicted in 1913 of murdering a 13-year-old Christian employed at the Atlanta factory where he was superintendent. Rumors said the girl was also raped. During the trial, crowds outside the courthouse shouted “Hang the Jew”; he was duly sentenced to death. Multiple appeals were rejected. But Georgia’s governor, disturbed by flaws in the case and the anti-Semitic incitement, commuted the sentence to life imprisonment. Two years later, vigilantes broke into Frank’s prison and murdered him.

Qatusa, a resident of the West Bank village of Deir Qaddis, was arrested on May 1 and held without bail on suspicion of raping a 7-year-old girl from the nearby Jewish settlement of Modi’in Ilit, where he was a janitor at the girl’s school. After his indictment hit the headlines on June 17, social media erupted with anti-Arab incitement, including from several politicians who accused him—with zero evidence—of intending the rape as a terror attack.

But then, Israeli democracy’s self-correcting mechanisms kicked in. Senior officials from Israel’s independent police and prosecution, who weren’t previously involved in the case, reviewed it and discovered numerous problems. The country’s free press investigated and reported additional problems. On June 25, after top law-enforcement officials concluded the evidence was insufficient, charges were dropped, and Qatusa was freed.

Additionally, while anti-Arab racism undoubtedly exists in Israel, it doesn’t seem to have been a factor in Qatusa’s case. Even the senior legal officials who withdrew the charges remain convinced that a rape occurred and that some evidence points to him, just not enough for criminal conviction. Moreover, he was just one of several Palestinians employed at the girl’s school; many others worked elsewhere in the settlement. Modi’in Ilit residents regularly patronized Deir Qaddis garages and relations between the towns were good, as evidenced both by the Modi’in Ilit residents who publicly protested Qatusa’s innocence and by those who danced at the wedding of the Deir Qaddis mayor’s son on June 13.

The case did highlight one real problem: the notorious incompetence of the police’s West Bank division. Back in 2011, Haaretz reported that the division consistently failed to follow basic investigative procedures; consequently, “case after case—against settlers and Palestinians alike—is either closed without going to trial or thrown out of court.” Evidently, not much has improved since then.

But no country anywhere is devoid of problems. What distinguishes democracies from dictatorships is that democracies have self-correcting mechanisms to try to address these problems. And Qatusa’s case shows that despite a real problem of police incompetence, Israel’s self-correcting mechanisms work; consequently, Leo Frank-style travesties of justice don’t happen. Nor, incidentally, do lynchings.

This is also worth remembering with regard to another case that recently made headlines in Israel—the shooting of 18-year-old Solomon Teka on June 30 by an off-duty policeman trying to break up a fight in a park. In this case, racism can’t be dismissed as a factor; many Israelis don’t believe that the incident would have ended with Teka dead had he not been an Ethiopian Israeli. Moreover, police have a history of racism against Ethiopian Israelis: See, for instance, the brutal beating of soldier Damas Pakada in 2017 (in that case, the abusive cop was at least dismissed from the force; Pakada later became a decorated officer in the army’s cyber corps).

Once again, the case highlights real problems—not just racism, but police brutality. The latter affects many demographics: Ethiopian Israelis, Arabs, settlers, migrant workers, demonstrators both right-wing and left-wing, etc. And it too often goes unpunished.

But if Teka’s shooting shows that progress in addressing these problems is clearly insufficient, a government report published in April shows that it is nevertheless occurring. Following Ethiopian-Israeli demonstrations against police brutality in 2015, the government appointed an interministerial committee to propose ways to eradicate racism against Ethiopian Israelis. And since 2016, the Justice Ministry has issued annual reports on implementation of these proposals.

The latest report documented insufficient but nevertheless real progress on the critical problem of over-policing. For instance, while arrests of minors overall were down 29.5 percent in 2018 compared to 2015, arrests of Ethiopian-Israeli minors fell 50.4 percent during this period. Ethiopian Israelis are still arrested disproportionately, accounting for 5.4 percent of all minors arrested in 2018 despite constituting only 1.6 percent of the population. But that’s down from 7.7 percent in 2015.

Insufficient but real progress has also been made on other issues, like the percentage of Ethiopian Israelis graduating high school (still low at 62 percent, but up from 35 percent in 2008). Moreover, as former Knesset member Dov Lipman noted, Israelis stuck in traffic for hours due to Ethiopian-Israeli protests over Teka’s death largely reacted with understanding rather than racist outbursts, indicating that racism, though real, isn’t endemic.

No country has ever managed to eliminate racism, and Teka’s case shows that Israel still has a ways to go. Yet at the same time, the Justice Ministry report shows that democracy’s usual self-correcting mechanisms—demonstrations, media reports, political action, etc.—are having an impact.

Democracy can’t turn human beings into angels, and all democracies fall short of their highest ideals. But they remain much better than non-democracies at creating mechanisms to counter the harm done by our worst impulses, and thereby, over time, to improve society as a whole.

Thus, the true measure of whether a democracy is functioning properly isn’t whether problems exist; they always will. Rather, it’s whether democracy’s self-correcting mechanisms are working effectively to mitigate those problems. And by that standard, Israel’s democracy is doing just fine.

This article was originally syndicated by JNS.org (www.jns.org) on July 17, 2019. © 2019 JNS.org

Three seemingly unrelated incidents occurred last week, yet all share a common denominator: They exemplify the way anti-Israel politics has corrupted the concept of human rights.

Let’s start with best-selling British novelist Richard Zimler’s report that two British cultural organizations recently refused to host him for lectures about his new book, though he has lectured many times on previous books. “They asked me if you were Jewish, and the moment I said you were, they lost all interest,” he quoted his publicist as saying.

It’s not that these groups have anything against Jews per se. They simply feared that hosting a Jew would make them a target for anti-Israel protesters.

Zimler isn’t Israeli, has no relatives or investments in Israel and doesn’t write about Israel. His latest book is set in the Holy Land 2,000 years ago, but its storyline is Christian rather than Jewish (it’s called The Gospel According to Lazarus). So he wouldn’t seem an obvious target, given BDS apologists’ repeated claim that anti-Zionism isn’t anti-Semitic.

Unfortunately, much of the anti-Israel crowd hasn’t gotten that memo. See, for instance, the German courts which ruled that torching a German synagogue wasn’t a hate crime, but an understandable anti-Israel protest. Or the student organizations which demanded that a South African university expel all Jewish students to show its pro-Palestinian bona fides. Or the Norwegian attorney general who ruled that “F*** Jews” isn’t hate speech, but an expression of “dissatisfaction with [Israel’s] policies,” although the speaker never mentioned Israel. Or the dyke marches that banned Jews from holding Jewish pride flags because they remind some people of Israeli flags. And so forth.

So despite deploring the unnamed organizations’ cowardice, I can’t dismiss their fears as unfounded. And that’s the problem.

Human-rights groups and liberals worldwide rush to defend the “rights” of BDS activists; see, for instance, their opposition to anti-BDS legislation on the false grounds that it violates freedom of speech (it actually applies only to actions, not speech). Yet they’ve shown no interest in defending Jewish rights in most of the examples cited above. Evidently, Jewish rights are acceptable collateral damage in the sacred cause of anti-Zionism.

The second incident was the Palestinian Authority’s harassment of Palestinian businessmen who attended the U.S.-sponsored economic workshop in Bahrain on June 25-26. One was arrested, but eventually released under American pressure. Another escaped arrest by fleeing to the Israeli-controlled section of Hebron. And the P.A. raided the homes of several others, confiscating documents like credit cards and passports.

These roughly 15 businessmen traveled legally to Bahrain to participate in what one reporter termed the conference’s “real, unofficial” purpose—closing legal business deals, mainly with fellow Arabs. They explicitly said they represented only themselves, not the P.A, and refused to talk politics, saying only the P.A. was authorized to do that. In short, not only did they commit no crime, they made no attempt to undermine the P.A.’s political positions.

Indeed, the P.A. didn’t even try to pretend that any crime was committed. As one Palestinian security official told Haaretz, there was “no specific charge” against the arrested businessman; the arrest “was a warning. He must understand the implications of this sort of collaboration.”

In other words, this was pure political persecution, which is standard P.A. practice. Palestinian journalists, activists and businessmen have all been arrested for such “crimes” as saying P.A. leader Mahmoud Abbas should resign.

Human-rights groups and liberals worldwide incessantly condemn Israeli violations of Palestinian rights (real or imaginary). They also frequently condemn Israel for utterly fictitious violations of Israeli rights. But innocent Palestinian businessmen arrested and harassed by the P.A. for doing legal business? You won’t hear a peep about that. Palestinian rights are evidently acceptable collateral damage in the sacred struggle against Israel.

The third incident was the estimated 100 fires that incendiary balloons flown from Gaza ignited in southern Israel. That’s an unusually high number for a single week, but incendiary devices from Gaza—courtesy of Hamas’s “balloon unit”—have been wreaking havoc for more than a year. In the six months ending in October 2018, such devices destroyed some 3,000 acres of forest and 4,000 acres of farmland. Since the winter rains ended, additional thousands of acres have been destroyed.

This is a war crime, according to both the Geneva Conventions and the treaty governing the International Criminal Court. Both define “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” as a war crime; the latter also lists causing “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Palestinian arson attacks do both, while serving no military purpose whatsoever.

The ICC is looking into numerous alleged Israeli crimes against the Palestinians and has even begged Palestinians to provide it with more complaints. Human-rights groups and liberals worldwide incessantly condemn these alleged Israeli crimes, including settlement construction, which, even if it were a genuine crime (it isn’t), is far less destructive than scorched-earth tactics (evacuated settlements could theoretically be given to the Palestinians under a peace deal). But I haven’t heard a peep about the destruction of large swaths of southern Israel, nor has the ICC considered probing it. Environmental devastation is evidently acceptable collateral damage in the sacred fight against Israel.

What all these cases show is that human rights have ceased being an objective standard applied equally to all. Instead, they’ve become a political tool to bash groups that liberals dislike. So Jewish rights matter when targeted by right-wing extremists (whom liberals loathe), but not when targeted by anti-Zionists. Palestinians’ rights matter when targeted by Israel, but not when targeted by the P.A. And Israeli rights never matter, except when violated by Israel.

This problem isn’t unique to the Israeli-Palestinian issue, of course. It’s just particularly blatant there.

Liberals and human-rights groups frequently complain that human rights are becoming devalued worldwide, and they’re right. But their own politicization of these rights is the chief culprit. And until this changes, contempt for human rights will only keep growing.

This article was originally syndicated by JNS.org (www.jns.org) on July 3, 2019. © 2019 JNS.org

Israeli Prime Minister Benjamin Netanyahu’s unexpected failure to form a new government, which indicates that his political end may be nearing, has prompted much speculation about what changes a post-Netanyahu era might bring. But here’s one thing that won’t change—the right’s efforts to reform the legal system. And nothing better explains why than the about-face of Finance Minister Moshe Kahlon, previously one of the system’s ardent defenders.

Reform efforts have been widely depicted for months as nothing but a way for Netanyahu to avoid standing trial. Thus many people seem to think they’ll dissipate once Netanyahu goes. As columnist Chemi Shalev wrote in Haaretz on May 28, “Without Netanyahu and his urgent need to avoid indictment, the right-wing crusade against Israel’s Supreme Court in particular and the rule of law in general would falter … without Netanyahu’s personal stake and drive, even a right-wing coalition would find it hard to muster the anti-court majority needed for such a drastic constitutional upheaval.”

In fact, the opposite is true. Legal reform has long enjoyed widespread support in both Netanyahu’s Likud and other rightist parties; the main reason it never happened is that Netanyahu himself repeatedly stymied it throughout his decade as prime minister. His sudden change of heart indeed stems from his own legal problems, but that isn’t true of most rightist politicians or of rightist voters.

Kahlon used to be a major exception. He entered the cabinet in 2015 vowing to thwart any effort to curb the legal system’s power. In his coalition agreement with Likud, he even demanded and received veto power over such legislation. And he exercised his veto repeatedly, inter alia killing bills to change the judicial appointments system and to let the Knesset reenact legislation overruled by the courts.

But after April’s election, Kahlon’s Kulanu Party signaled that it would no longer thwart such efforts. As Revital Hovel reported in Haaretz last month, there are two reasons for this.

First, even Kulanu voters—the most moderate segment of the center-right electorate—objected to Kahlon’s defense of the legal status quo. In April’s election, Kulanu dropped from 10 Knesset seats to four, and the party’s internal polling found that its repeated vetoes of legal reforms were a major reason why. Many rightists simply won’t vote for anyone opposed to legal reform.

Second, Kahlon got mugged by reality. As finance minister, he acquired firsthand experience of the way the Supreme Court prevents governments from governing by repeatedly overturning decisions it deems “unreasonable”—a judgment other democracies leave to voters.

Most dramatically, the court overruled Kahlon’s flagship policy on what even Hovel, a court supporter, admitted were “novel grounds.” Kahlon won election by promising to lower Israel’s cost of living, particularly its astronomical housing prices. He therefore enacted a special tax on third apartments, arguing that making it more expensive to buy housing for investment purposes would cool demand and thereby lower prices.

The tax was part of the annual Economic Arrangements Law, an omnibus bill enacted together with the state budget because the government deems its provisions necessary to meet budgetary targets. It passed all necessary votes in both the Knesset Finance Committee and the full Knesset. Nevertheless, the court overturned it, claiming the legislative process was flawed.

Here, according to the ruling, are the justices’ objections: The Finance Committee’s overnight discussion wasn’t in-depth enough. Knesset members didn’t receive the bill’s final revisions in time, so they relied on treasury officials’ oral explanation of the changes. Government representatives, the committee chairman and some Knesset members repeatedly urged other committee members to stop asking questions and just pass the bill already. In short, the court said, the process was characterized by “haste, pressure and panic,” thereby depriving MKs of the chance to form an “educated opinion” of a bill with significant financial ramifications.

Or in other words, as anyone familiar with the Knesset would know, it was situation normal for the final stage of the annual budget debate, in which MKs must approve thousands of pages of legislation within days to meet the end-of-year deadline (I know this firsthand, having covered the proceedings for years as a reporter). The budget passes less through reasoned debate than through standard legislative horse trading, in which all MKs support certain items they dislike so that other MKs will support their budgetary priorities.

Nevertheless, the court decided that in this particular case, standard practice had suddenly become so unreasonable as to be unconstitutional, and overturned the law. That effectively killed Kahlon’s tax, which, like many tax hikes, was too unpopular to pass outside the annual budgetary horse-trading.

Kahlon also repeatedly fell victim to another of the Supreme Court’s unique interpretations of the “rule of law”—that a government has no right to representation in court if the attorney general disagrees with its position. For instance, as finance minister, Kahlon is ostensibly in charge of taxes. Yet the court overruled his decision to maintain differential taxes on cigarettes and rolling tobacco without his position even being granted legal representation.

The same happened when the court ordered Kahlon to raise the price of price-controlled milk (a vestige of Israel’s socialist past). To be clear, I consider price controls bad policy, especially when, as in this case, higher production costs probably justified raising prices. But by law, the price of price-controlled milk is set by the finance and agriculture ministers, not the attorney general or the court. Thus by overruling Kahlon on the grounds that his decision was unreasonable, the attorney general and the justices effectively usurped the minister’s legal authority and forced him to violate his campaign promise to keep prices down, all without his position even being represented in court.

After more than three decades of such rampant judicial activism, too many rightist legislators and voters have similar stories of policies they cared about being nixed not because they violated any law or constitutional provision, but merely because unelected justices or an unelected attorney general decided to substitute their own policy judgments for those of the elected government.

That’s what’s truly driving the movement for legal reform. And it won’t disappear when Netanyahu does.

This article was originally syndicated by JNS.org (www.jns.org) on June 5, 2019. © 2019 JNS.org

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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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