Constitutional crisis – which democracy will Israel be? - analysis

At some point, it is likely that the Knesset and the Supreme Court will be staring each other down and waiting for the other side to blink – and who blinks first could lead to different paths for Isr

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May 16, 2019 23:56
4 minute read.
Gavel

Gavel [Illustrative]. (photo credit: INIMAGE)

 
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The series of laws being entertained by the expected coalition and the anticipated response by the Supreme Court are making a constitutional crisis ever more likely.

The scenario is inching closer whereby the incoming coalition passes laws to protect from prosecution Prime Minister Benjamin Netanyahu and other ministers including Arye Deri. The expected coalition may also pass laws blocking the Supreme Court from vetoing this protection.

With Attorney-General Avichai Mandelblit expected to file an indictment for bribery against Netanyahu later this year or early in 2020, Supreme Court President Esther Hayut warned earlier this week that the laws being considered could end Israeli democracy.

She said the threat was similar to how the Nazis used democratic institutions to turn the liberal constitution of Germany’s Weimar Republic into a dead letter.

At some point, it is likely that the Knesset and the Supreme Court will be staring each other down and waiting for the other side to blink – and who blinks first could lead to different paths for Israeli democracy.

It could play out like this: The Knesset passes a law protecting Knesset members from prosecution. The Supreme Court nixes the law. The Knesset passes a law giving it a veto over Supreme Court vetoes and repasses the law, insulating its members from prosecution.

Does the Supreme Court then nix the Knesset law limiting its veto power, saying that it contradicts the Basic Law on Human Dignity and Freedom, or some inherent power of judicial review?

If the Supreme Court nixes the Knesset’s power to nix it, does the Knesset bow its head, ignore the court or take more extreme action against it?

Do supporters of the Knesset or of the Supreme Court then take to the streets? Where does it end?

On one side, led by Netanyahu, stands the country’s Right wing – which has governed for 10 years and will continue to govern in the coming term.

The Right wing splits into two camps.

One wants to selectively “fix” the balance between the Knesset and the Supreme Court/legal establishment in areas where it is felt that it has overreached, such as the court’s several vetoes of the government’s African migrants policy.

Netanyahu has generally been part of this camp, showing a readiness to push through a law which gives the Knesset a veto over Supreme Court vetoes, but – until now – trying only to do so with some consensus from the attorney-general and from the courts.

Had former justice minister Ayelet Shaked agreed to a 70-vote super-majority for the Knesset’s veto of Supreme Court vetoes, this law might very well have passed in the last term.


But Shaked represented the second camp on the Right.

She wanted a 60-vote majority for the Knesset to veto the Supreme Court which while, not as easy as passing a regular Knesset law, still only requires votes from the governing coalition.

While Shaked was not reelected in the April 9 general election, inheriting her role are Yariv Levin, the presumed incoming justice minister, and Betzalel Smotrich, one of the leaders of the URP party.

This camp wants to more comprehensively reduce the authority of the Supreme Court and the attorney-general with a hammer, believing that a scalpel is insufficient and that judicial overreach goes way beyond a few specific issues.

Add into this mix that Netanyahu appears to want some kind of legislative action that will block him from being prosecuted as long as he is prime minister, and the dial moves toward the camp seeking a more comprehensive reduction of the legal establishment’s powers.

On the other side stands the country’s Left wing and legal establishment.

The Left wing actually views the legal establishment as too weak in pushing back against the tyranny of the majority tendencies of the Netanyahu governments.

In addressing the expected crisis, some columnists are envisioning droves of Israelis fleeing the country or taking to the streets with a general strike to shut down the government until it relents.
Mandelblit and Hayut are not remotely left-wingers.

But they believe that the legal establishment they represent must maintain independent powers to safeguard the rule of law even from elected politicians – lest those politicians ignore the quasi-constitutional Basic Laws which the Knesset passed in the 1990s.

They view the current slate of proposed laws as a naked power grab to undermine the rule of law.

Mandelblit, once a strong fan of Netanyahu, is now also determined that the prime minister stand trial for bribery and corruption charges.

In different times, Netanyahu would likely back down, wanting to link up with former prime minister Menachem Begin’s deference to the judicial branch.

But with the loaded gun of a bribery trial on the table, it is far from clear who will blink first – or if anyone will blink before this likely constitutional crisis spins out of control.

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