The Reform of Israel’s Judiciary Is an Urgent, and Trans-Partisan, Issue

Now that the votes have been tallied, it seems almost certain that the next Israeli prime minister will be Benjamin Netanyahu, leading a coalition of rightwing and religious parties. A key item on the platform of several members of this prospective coalition is reform of the judiciary, which has enormous power that it has largely granted to itself. Aylana Meisel-Diament and Yonatan Green explain what is at stake:

Though it might seem a modern partisan power struggle, the judicial-reform debate has much older roots. Founded 74 years ago, Israel developed its system of law and governance in an ad-hoc fashion, and generally in crisis periods. Political fragmentation, defense against constant existential threats, and the lack of a written constitution left a power vacuum that the Israeli court system has slowly and intentionally filled without a popular mandate to do so.

The Israeli Supreme Court, not a popular-representative body, unilaterally declared a written constitution in the 1990s, a surprise to the lawmakers who had passed the statutes the Court decided to “constitutionalize.” The Court then endowed itself with the power of judicial review of parliamentary legislation despite the absence of a duly ratified constitutional document. And the Court departed from its own tradition of restraint effectively to eliminate any limitation on standing and subject-matter jurisdiction in constitutional cases. These are just a few elements of a long and continuing appropriation of policy-making power by the judiciary.

Within Israel, demand for judicial reform—including revising the method of judicial selection and limiting the Court’s vast authority—is bipartisan and extends back nearly 40 years. While the cause is more popular on Israel’s right than its left today, the foremost advocates of these reforms have often been legal luminaries affiliated with Israel’s left or political center.

As for the more specific legal reforms endorsed by right-leaning Israeli politicians, these too are far less partisan than some observers have claimed:

[C]onsider the proposed abolition of Israel’s “Breach of Trust” criminal offense (for which Netanyahu has been indicted) and a proposed grant of revocable criminal immunity to legislators. The substance of the proposal is certainly worthy of debate, but it is incorrectly portrayed . . . as a “blatant attempt to place Netanyahu above the law.” In fact, this particular proposal is intended to apply only prospectively, and not to Netanyahu’s ongoing case. Looking at the relevant history here is illuminating. The “Breach of Trust” offense has been severely criticized by legal scholars since the 1990s, decades before the Netanyahu indictments.

Read more at National Review

More about: Benjamin Netanyahu, Israeli politics, Supreme Court of Israel

Recognizing a Palestinian State Won’t Help Palestinians, or Even Make Palestinian Statehood More Likely

While Shira Efron and Michael Koplow are more sanguine about the possibility of a two-state solution to the Israel-Palestinian conflict, and more critical of Israel’s policies in the West Bank, than I am, I found much worth considering in their recent article on the condition of the Palestinian Authority (PA). Particularly perceptive are their comments on the drive to grant diplomatic recognition to a fictive Palestinian state, a step taken by nine countries in the past few months, and almost as many in total as recognize Israel.

Efron and Koplow argue that this move isn’t a mere empty gesture, but one that would actually make things worse, while providing “no tangible benefits for Palestinians.”

In areas under its direct control—Areas A and B of the West Bank, comprising 40 percent of the territory—the PA struggles severely to provide services, livelihoods, and dignity to inhabitants. This is only partly due to its budgetary woes; it has also never established a properly functioning West Bank economy. President Mahmoud Abbas, who will turn ninety next year, administers the PA almost exclusively by executive decrees, with little transparency or oversight. Security is a particular problem, as militants from different factions now openly defy the underfunded and undermotivated PA security forces in cities such as Jenin, Nablus, and Tulkarm.

Turning the Palestinian Authority (PA) from a transitional authority into a permanent state with the stroke of a pen will not make [its] litany of problems go away. The risk that the state of Palestine would become a failed state is very real given the PA’s dysfunctional, insolvent status and its dearth of public legitimacy. Further declines in its ability to provide social services and maintain law and order could yield a situation in which warlords and gangs become de-facto rulers in some areas of the West Bank.

Otherwise, any steps toward realizing two states will be fanciful, built atop a crumbling foundation—and likely to help turn the West Bank into a third front in the current war.

Read more at Foreign Affairs

More about: Palestinian Authority, Palestinian statehood