Perspective 101. Is Israel Falling Apart?
Hundreds of thousands on the streets (in a nation of nine million). Officers of elite military units threatening to refuse duty. High technology firms heading for the exit. Police under a government minister with a long criminal record. Is disintegration of the Jewish state, long trumpeted by its worst enemies, coming to pass?
Not necessarily. The size of the protests is itself testimony to the strength of civic Israel, to those committed to democracy and the rule of law. But the threat to these standards is very real, and the outcome is by no means assured.
In perspective, the safeguards for Israeli democracy are weak. As noted previously, Israel has no written constitution, but only “Basic Laws” passed, like ordinary legislation, by a simple majority of the 120 Knesset members. So a Basic Law, like the one that first established the judicial system, can be superseded by another Basic Law also adopted by 61 votes.
This is exactly what the Netanyahu government plans to do: to pass a new Basic Law, with its slim majority of 64 votes, giving itself control over the selection of future judges and the right to overrule future Supreme Court decisions.
The Supreme Court has assumed the right to overturn laws and governmental actions that violate existing Basic Laws. But what does it do with a new Basic Law that in itself violates democratic principles by threatening to create a “tyranny of the majority”?
Can the Supreme Court invalidate legislation on which Bibi has slapped the label of “Basic Law”? On what grounds?
The Supreme Court in the past has acted in defense of broader principles of liberal democracy, citing Israel’s Declaration of Independence. The Declaration guarantees “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” On these grounds, the court has assumed a duty to act against laws or actions that “negate Israel’s character as a democratic state.”
Many Israeli jurists expect, therefore, that the Supreme Court is likely to invalidate a new Basic Law that would annul its own authority to act as protector of basic values in the system. The question then is what the government would do. Would it accept the authority of the Supreme Court, as all Israeli governments to date have done? Or would it defy the court on grounds that the new Basic Law overrides the court’s authority?
This would set the stage for a true constitutional crisis. Observers are imagining that judges appointed under the new law would be kept out of the courtroom by court guards, who would in turn be countered by police sent by the oft-convicted National Security Minister.
What, in fact, would Israel’s security services do? Whose orders would they follow? Some former police and security chiefs have expressed assurance that these forces would follow the edicts of the court. But this is by no means certain.
What is truly alarming is that the question must be asked in the first place.