The Israeli Knesset is opening its winter session today, and it is already clear that this winter will be a stormy one. Early signs of possible elections quickly proved to be false alarms, yet the legislature is already gearing itself toward the next electoral test, possibly in late 2015 or early 2016, and MK’s will be competing for attention and will strive to differentiate themselves from their peers while catering to their specific audiences.
All the news from the Knesset and from the government battles should be considered with this background in mind, and this refers mostly to the high profile battles over what some people tend to call “undemocratic” legislation attempts. The most recent such example is the proposal (and the supposed approval by a government committee) of a bill that will allow the Knesset to “bypass” the decisions of the High Court.
Eight lawmakers in the Ministerial Committee for Legislation supported the bill, while three opposed it, in a vote taken on Sunday. Conveniently enough, the opponents are Justice Minister Tzipi Livni, Science and Technology Minister Yaakov Peri of Yesh Atid, and Health Minister Yael German of the same party. That’s the way it’s going to be all through the summer: rightist elected officials playing the politics of the right – in this case by pretending to wage a great war against the exaggerated power of the liberal High Court – and centrist elected officials will play the politics of the center-left by pretending to save the court and other institutions from the rightist Huns.
It is a predictable game of little consequence, other than making Israel’s battles of populist rhetoric even more disturbing than they are today. The legislation is not going to pass. Two years ago or so, the Knesset went through a similar period of hyperactivity when its “governing right-wing coalition” – as I wrote back then – “introduced bills to limit the power of Israel’s Supreme Court (which is seen as too liberal and too activist), restrain leftist nongovernmental organizations (partly by reducing foreign donations) and rein in academics (at least those who are said to damage Israel’s image abroad)”. It did not work then and it will not work now. Luckily, there are responsible adults whose role is to calm things down.
Consider the following analogy: in the US, the House is the unruly and populist wing of Congress, and the Senate usually balances it with a calmer, more moderate way of doing things. In Israel there is no Senate. The Knesset is like the House and it falls to the government to play the Senate. Justice Minister Livni has the power to shelve the legislation by not even scheduling a vote (she chairs the Ministerial Committee for Legislation). Or she can make this the Prime Minister’s headache by forcing a vote. Prime Minister Netanyahu has proven time and again that he has a dislike for disruptive and inflammatory bills.
Two and a half years ago, there was an attempt by the former Justice Minister Yaacov Neeman to pass a bill similar to the one we have before us today. Neeman proposed a bill that would have allowed a small majority of legislators in the Knesset (65) to reinstate laws struck down by the Supreme Court. The current bill is more extreme in proposing that a simple 61 majority could reinstate struck down laws. I explained that failed attempt by saying that “while Israeli liberals see the Court as a defender of rights and the sole guardian of Israel’s democratic values, there’s a growing sense of unease among large segments of the population and even more so among policy makers, who believe that the Court is setting policy instead of making law, and holding Israel hostage to its liberal worldview, one that is not compatible with the public’s true democratic aspirations.”
That has not changed. Relations between the Court and the Knesset, and the Court and the government are somewhat strained (as they should be in a vigorous democracy).
Having said that, the initiators of the “bypass” legislation have some justifiable – or at least understandable – misgivings about the court’s tendency to disrupt the government’s ability to rule. The latest case is the decision to strike down, for a second time, legislation that aims to deal with Israel’s problem of illegal immigration. The proponents of the new bill say two things that make sense: Israel was a reasonable democracy even before 1995, when the High Court decided that it has the authority to strike down laws legislated by the Knesset – a decision that was highly controversial. Moreover: there are many fine democracies, such as Britain, in which the court does not have such authority.
Opponents of the bill also have justifiable misgivings: Israel is no Britain, and its unruly way of doing legislative work calls for supervision. Israel is a country in which fissures and debates are significant and the court is necessary to keep the majority in check and prevent it from harming the minorities. Moreover, Israel’s High Court is not as extreme in its decisions as the rightists tend to portray it. The Knesset can still legislate, and the government can still govern.
So both sides have some good arguments and some weaker arguments. And both sides seem to be less interested in arguments and in searching for a proper balance for the relations between the court and the democratically elected institutions of the state – and more interested in press releases and sound-bites that will endear them to an electorate.
The simple reality is this: there are legitimate debates about the proper role of the courts, and about their authority to meddle with Israel’s legislation. There are thoughtful and significant viewpoints on both sides of these debates. And then, there are the Members of Knesset. The rightists can fight for an exaggerated bill because they know that it is not going to pass (so why make a moderate suggestion?). The centrists can use high rhetoric and claim that they are “saving Israel’s democracy” because they also know that they have the power to do that, and that it is all a game of political positioning.
So while you follow the fierce debates over this or that legislation in the coming months, try to keep in mind the following: In most cases, if a legislation with which some segments of the political spectrum do not agree passes, it is still not the end of democracy. If, on the other hand, a legislation that is supported by a majority in the Knesset is blocked by administrative manipulation or by a court decision, it is also not the end of democracy and not the end of the Knesset’s ability to govern.
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