Israel’s Judicial Tyranny and Its Anti-Democratic Defenders

June 19 2019

Recent statements by Israel’s minister of justice Amir Ohana have brought back to public attention the controversy between those who wish to defend the unchecked power of the country’s overweening Supreme Court—paradoxically condemning any complaint about the power of this unelected oligarchic body as “undemocratic”—and those who wish to impose limits on its authority. Moshe Koppel comments:

[O]ne might be tempted to argue that the court is limited by its dependence on the law, that it has to work with the laws it’s given by the legislature. . . . This sounds plausible, but it doesn’t hold water. First, the court here makes frequent use of a [unique] doctrine it calls “interpretation by objective purpose,” which means that a law should be interpreted neither according to its plain meaning nor according to the legislature’s intent, but rather however the court deems appropriate. In short, statutory language does not constrain the bench on any occasion in which the bench does not wish to be constrained.

Second, and more shockingly, the claim that statutes can only be struck down in accordance with constitutional principles is also now being challenged. The court has agreed to hear petitions against the constitutionality of Basic Law: Israel as the Nation-State of the Jewish People. Since Basic Laws are Israel’s equivalent of constitutional legislation, this challenge to a Basic Law’s constitutionality is incoherent. The court’s agreement to hear this case . . . is tantamount to the claim that nothing is outside its purview, including the constitution itself.

I invite those who are now defending the court to provide an example of a single situation in which the court disapproves of a law or government action but does not—and, in their opinion, should not—have the authority to intervene. Careful: an example where the court chooses not to exercise its authority is insufficient; it needs to be an example where it doesn’t have the authority.

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More about: Israel's Basic Law, Israeli democracy, Supreme Court of Israel

 

Will Tensions Rise between the U.S. and Israel?

Unlike his past many predecessors, President Joe Biden does not have a plan for solving the Israel-Palestinian conflict. Moreover, his administration has indicated its skepticism about renewing the 2015 nuclear deal with Iran. John Bolton nevertheless believes that there could be a collision between the new Benjamin Netanyahu-led Israeli government and the Biden White House:

In possibly his last term, Netanyahu’s top national-security priority will be ending, not simply managing, Iran’s threat. This is infinitely distant from Biden’s Iran policy, which venerates Barrack Obama’s inaugural address: “we will extend a hand if you are willing to unclench your fist.”

Tehran’s fist is today otherwise occupied, pummeling its own people. Still, it will continue menacing Israel and America unless and until the internal resistance finds ways to fracture the senior levels of Iran’s regular military and the Revolutionary Guards. Netanyahu undoubtedly sees Iran’s growing domestic turmoil as an opportunity for regime change, which Israel and others can facilitate. Simultaneously, Jerusalem can be preparing its military and intelligence services to attack Tehran’s nuclear program, something the White House simply refuses to contemplate seriously. Biden’s obsession with reviving the disastrous 2015 nuclear deal utterly blinds the White House to the potential for a more significant victory.

To make matters worse, Biden has just created a Washington-based position at the State Department, a “special representative for Palestinian affairs,” that has already drawn criticism in Israel both for the new position itself and for the person named to fill it. Advocated as one more step toward “upgrading” U.S. relations with the Palestinian Authority, the new position looks nearly certain to become the locus not of advancing American interests regarding the failed Authority, but of advancing the Authority’s interests within the Biden administration.

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More about: Benjamin Netanyahu, Iran, Joe Biden, U.S.-Israel relationship