Fed up with the courts that resisted his progressive legacy, Teddy Roosevelt suggested the people get an opportunity, through special polls, to overturn judicial rulings. “Democracy,” he reasoned, “has a right to approach the sanctuary of the courts when a special interest has corruptly found sanctuary there.”
Roosevelt’s idea fell flat, first when he failed to replace president William Taft as the Republican presidential nominee for 1912, and then when Woodrow Wilson defeated the both of them (and socialist Eugene Debs).
Still, Roosevelt’s proposal is recalled as one of the most serious challenges the world’s most independent judiciary ever faced, for two reasons: first, it was proposed by a popular former president, and second, because it would have pitted the populace against the judiciary.
In principle, such dynamics are now at play in the unfolding drama between the Jewish state’s judiciary and the most conservative government Israel has ever had.
What began with the struggle surrounding the West Bank neighborhood of Amona and then proceeded to the passage this week of a controversial bill for the regulation of unregulated outposts is now expected to culminate in a contentious High Court of Justice ruling.
At stake is a new law that says residents of West Bank houses built on land whose ownership was challenged after the houses’ construction and inhabitation would not be removed. Instead, the claimants would be offered compensation – either alternative land or funds worth 125% of their lost land.
This reform potentially involves hundreds of houses built by Jews in the West Bank, usually in the unauthorized outposts that sprouted since 1993, as part of the grassroots effort to make the Oslo Accords’ implementation impossible.
The bill that passed a third (final) reading Monday by a vote of 60-52 is laden with political, diplomatic and legal dynamite, and would doubtfully have passed but for the election of Donald Trump and the legitimacy it is lending to once-unthinkable political experimentation.
THE POLITICAL dynamite lies not in the Left’s revulsion with this bill, which was both expected and ineffective, but in the legislation’s implicit challenge to Prime Minister Benjamin Netanyahu’s authority within the Right.
Netanyahu had reportedly hoped to see the bill buried in the Knesset Law Committee after passing its first reading. That is what happened last month when he prevented the Ministerial Legislation Committee from voting on a proposal to annex the city of Ma’aleh Adumim, a resolution that would have touched off a legislation process on that front as well.
Things took a different course on the outposts regulation bill, and the problem from Netanyahu’s viewpoint is that he was dragged into this situation by others, most notably the Bayit Yehudi faction and its leaders, Education Minister Naftali Bennett and Justice Minister Ayelet Shaked.
As things currently stand, Israel’s political agenda has been dictated by others, and Netanyahu finds himself responding rather than initiating. Indeed, even if the court annuls this legislation, Netanyahu will be presented by his opponents as having been led into a major move by a junior coalition partner, instead of it being the other way around, and as having been maneuvered by his own party’s hard-liners.
In the cabinet, Netanyahu has reportedly expressed concern that the bill will trigger an international backlash that might ultimately lead to the International Court of Justice in The Hague.
Whether or not this unsourced report is true, the diplomatic backlash is indeed afoot.
First came the European Union, whose foreign policy chief, Federica Mogherini, said the morning after the Knesset’s vote that its newest law means Israel is out to “entrench a one-state reality of unequal rights.”
Then came French Foreign Minister Jean-Marc Ayrault, who warned that the law “could exacerbate regional tensions,” and “harms the two-state solution.”
British Minister for the Middle East Tobias Ellwood concurred, saying the bill “threatens the viability of the two-state solution,” and that “as a long-standing friend of Israel,” he must warn that it “damages Israel’s standing with its international partners.”
The following day, and much more unusually, the German Foreign Ministry, which ordinarily tries to avoid the Arab-Israeli conflict’s fray, said its “trust in the Israeli government’s commitment to the two-state solution has been fundamentally shaken,” and that “many in Germany who stand by Israel and feel great commitment toward it find themselves deeply disappointed by this move.”
And even more unusually, the bill’s passage made distant Japan respond as well, and in harsher words than the rest, saying it “deeply deplores” the bill’s passage, adding that “settlement activities are in violation of international law,” and calling on the government “not to implement the law, and desist from unilateral actions that are undermining the viability of a two-state solution.”
Conspicuously absent from this choir was Washington, in what has made some speculate that the vote was coordinated with the Trump administration, ahead of Netanyahu’s journey to the White House next Wednesday. That may indeed be true, considering the White House’s ambiguous response to new construction in the West Bank, which said that existing settlements were not an impediment to peace, but also that expanding them “may not be helpful in achieving that goal.”
Yet even if this mild response proves to have been coordinated and durable, the outpost regulation bill is a legal powder keg, regardless of its diplomatic voltage.
THE LEGAL problems with the bill are twofold: constitutional and jurisdictional.
Constitutionally, the new law arguably violates the right of possession. In terms of jurisdiction, it lets the Knesset decide the rights of people who do not, and cannot, participate in its election.
Constitutionally, the outpost law defies Basic Law: Human Dignity and Liberty, where Paragraph 3 says plainly “the property of a human being shall not be violated.”
That is what made MK Bennie Begin, though he is an emphatic settlement supporter, call the bill “a law of robbery.”
More deeply, Begin’s stance echoes his father, Menachem Begin’s insistence that the West Bank settlements all be built on state-owned land.
The legal picture is so simple that Attorney- General Avichai Mandelblit said he will not defend the bill in the High Court of Justice, should it be appealed.
The only analogy in Israeli history to this civil servant’s defiant statement is attorney-general Yitzhak Zamir’s decision in 1986 to indict Shin Bet (Israel Security Agency) head Avraham Shalom, following the Bus 300 scandal (in which secret agents killed unarmed terrorists after their capture), despite the pleas of then-prime minister Shimon Peres and his deputy, Yitzhak Shamir.
As of this writing, the outpost law has yet to be appealed, and the opposition parties say they prefer to see Netanyahu sweat before someone else appeals and gets the court to retrieve the prime minister from the hot water where he has arrived.
Even so, an appeal is surely on its way, and the government is likely to be represented in court by a freelancer who, jurists believe, stands no chance of preventing the justices’ dismissal of the bill as unconstitutional.
Netanyahu might then find himself dragged into more cockfights with the judiciary by light-minded people who squint in Trump’s direction as he confronts his own judiciary with a rudeness of which even Roosevelt never dreamed.
The lawmakers who cooked the outposts bill hope it will mark the beginning of the West Bank’s annexation, capitalizing on a Trump era that they believe is an ideal setting for this aim.
The precedent that comes to their mind is Menachem Begin’s Golan Heights annexation law of 1981, whose international condemnation, led by Ronald Reagan, proved short-lived and ineffective.
Sadly, in making this analogy, the bill’s sponsors conveniently forget that the Golan was inhabited in 1981 by barely 20,000 non-Israelis, as opposed to 1.75 million Palestinians in the West Bank and Jerusalem today, according to conservative Israeli estimates, and at least 2.75 million according to others.
In fact, the better analogy to the evolving mess is the Likud’s Jerusalem Law of 1980, which declared united Jerusalem Israel’s capital.
That law was brave, patriotic and an evocative expression of Israeli wishful thinking, but its practical result was that the 13 embassies that had defied the international consensus and stayed in Jerusalem now abandoned it and slid to the coast, where they joined all the rest, and remain to this day.www.MiddleIsrael.net