Friday, January 13, 2023

Israel's Constitutional Crisis

In This Moment

Israel's Constitutional Crisis

Shabbat Shalom

In my email yesterday I highlighted some of the serious issues facing Israel as the new government's policies begin to crystallize. I want to use this additional weekly newsletter to help explain why this is indeed a major crisis, one that has prompted Israelis from a wide swath of the political spectrum to cry out for our support. And I want to help you to better understand the complex issues at hand. Additionally, I want to show you an example of how one might simultaneously love Israel and be fully supportive of her, while at the same time oppose the policies of the current regime vocally and publicly. It's a tall order, but given that many of you have been asking how we can respond to this, it can't wait for next week's Shabbat-O-Gram.

I am fully aware that this might remind some of the email I sent you just after the 2016 election, when I perceived the potential for a mortal threat to American democracy. The Jan. 6 investigations and other inquiries have proven that I was right. And it was morally right for clergy to inspire activism as well as hope, and never to ignore the dangers at hand.

Some, I daresay more than a few, would have preferred that I stay silent and aim always for the path of least resistance. That has never been my way but, lucky for you, you'll get a chance to find someone more amenable to that style in the near future. Some would have preferred that I not welcome recent immigrants facing deportation or take a knee following George Floyd's murder, and certainly, certainly, never get "political" when it comes to Israel. You know that has never been my way.

But whatever my critiques of this or that Israeli policy have been in the past, I've never gone "Code Red" with regard to Israel's internal actions (as opposed to actions directed against Israel, where I've often gone "Code Red.") Even the 1982 Lebanon War, which caused me deep consternation (as I described in this year's Rosh Hashanah day 2 sermon), led me to circle the wagons, as the world's criticism grew more virulent.

That will happen now too. People who have been chomping at the bit to condemn Israel are poised to strike, in the media, the UN and on college campuses. Their response is, as usual, Pavlovian and devoid of context. But this time, we can't follow our own typical knee-jerk pattern and rally to the defense of policies that are simply not defensible. That's why Prime Minister Netanyahu's standing ovation when he spoke to a leadership group of major donor American Jews this week was ill-timed and inaccurate. It gave the impression that American Jews want to give this government a blank check to dismantle Israel's democracy and harm human rights. Not true. That's why we need to stake out positions now, which, because Israel needs America more than it likes to admit, might - just might - moderate Israel's approach to some of these new policies, and it might - just might - help preserve Israeli democracy. We need to act BEFORE the next terror attack, or mini war with Gaza, or God forbid, major war with Iran and Russia. And we need to act before the Knesset rams through the changes.

If you love Israel, now is the time to speak up. That's what Alan Dershowitz is doingThat's what David Horovitz is doing (he called the new policies a "democratic dictatorship). Read Yossi Klein Halevi's essay in the Atlantic: Netanyahu’s Betrayal of Democracy Is a Betrayal of Israel - Decency and reason can still prevail, but more than ever Israel needs its Jewish friends abroad.

All these voices are being heard - and so are many others who have always had Israel's back. How could we possibly ignore them?

1) What are the most pressing issues right now?

For the answer to this, I call on old friend Marc Schulman, who wrote about this on his Substack page today (click here to read the whole thing). Just listen to his cry for help!

It's difficult to fully convey the anxiety felt by my friends and acquaintances about the actions of the new government. On one hand, daily life continues as usual — we work, walk our dogs, and meet up for coffee. However, the fear that we may be losing the country we love looms over us constantly. Some may think I am exaggerating, but this fear has become very real and has only intensified in recent weeks.

This week, Justice Minister Yariv Levin unveiled the first part of his plan for “Judicial Reform”. Levin’s “proposal” was not developed by the professionals within the Justice Ministry, but rather, a fully detailed plan he unveiled upon his arrival at the Ministry (likely with the assistance of the American-funded ultra-Conservative Kohelet Institute). While the general outline of Levin's plans were known in advance, seeing it written out as proposed legislation made its potential impact all the more tangible, and consequently, frightening.

As a result of the compliment of sweeping changes Levin is intent on implementing, many believe the very essence of Israel as a democratic country is now at risk. Before delving into the specifics of Levin’s proposal, some background is needed to understand why this plan is so dangerous. Even before Levin took over the Ministry of Justice, Israel's democracy was rather fragile — particularly for those familiar with the democratic systems in place in countries like the United States. Unlike almost all other Western countries, with the exception of England, Israel does not have a constitution. Israel's parliament operates under a national list system, which means that no one represents their constituents directly. The Israeli parliament and government are essentially one unit. As a result, members of the ruling coalition in parliament cannot vote against the government if they want to maintain a political future. Without independent bases in specific local districts throughout the country, the parliament does not act as a balance to the government — i.e. whatever the government decides, the Knesset will approve.

Israel does have what are known as "Basic Laws," which provide some form of protection for individual rights. However, these laws can currently be amended with just 61 votes — a simple majority in the Knesset. The Supreme Court is the only balance in Israel’s system of governance. Only the Supreme Court has the power to declare laws or administrative actions in violation of Israel's Basic Laws, or to declare those actions to be unreasonable. Over the course of the last 30 years, Israel’s Supreme Court has ruled that laws or parts of laws violated Israel's Basic Laws 29 times.

It is because of the Supreme Court that women are now able to become pilots, and that the ultra-Orthodox have not yet been completely exempt from service in the IDF.

The Supreme Court has also ruled that certain settlements are illegal, not because settlements themselves are illegal, but because certain particular settlements were built on private Palestinian land. Given this context, it is clear that those who wish to weaken Israeli courts have their own interests at heart. The ultra-Orthodox wish to pass laws that would exempt their children from Army service, and limit the rights of women. At the same time, representatives of settlers wish to remove barriers to unlimited settlement growth in the West Bank. Lastly, there are those who want to end Prime Minister Netanyahu’s corruption trial — and they know that a strong court would never allow that to happen.

So what are Levin's actual proposals? They are divided into four parts.

  • The first part states that the Supreme Court cannot invalidate any Basic Law, unless the decision is unanimous. It is important to note that almost any law can become a Basic Law even if passed by a simple majority. Under Levin's proposed terms, even if the Supreme Court invalidates a law, 61 members of the Knesset will be able to then vote to override the decision of the Supreme Court. This means that the government, which always has at least 61 votes, would be able to override absolutely any decision made by the Supreme Court.

  • The second part of Levin’s plan relates to the selection of judges. Currently, judges are chosen by a committee made up of representatives from the government, representatives of the legal profession, and several justices themselves. This cohort regularly requires compromise by all factions to reach accepted decisions. While this system is not perfect, it is well-regarded. However, Levin’s proposed system, would ensure that the committee is made up overwhelmingly of politicians, allowing them to appoint judges of their choosing without needing to compromise.

  • The third aspect of Levin’s plan is to eliminate the authority of judges to determine whether a law or administrative action by the government is “unreasonable”. If this facet is implemented, it means the courts will no longer be able to act as a check on the actions of the government, or provide any form of redress for citizens suing the government for its actions.

  • The final part of Levin's plan declares the recommendations of legal advisors for every ministry — including the Prime Minister's office — no longer be binding. They will maintain a solely advisory role, and even if they state that an action is illegal, as the “duly elected official,” the minister will be allowed to proceed with no regard to the legal recommendation.

Thank you Marc. Read the rest of his post at Marc Schulman's Tel Aviv Diary. And subscribe to it! He never fails to inform.

2) How do we respond to those who try to delegitimize Israel because of this? By loving Israel so much that we will stand up to those who try to destroy her from within.

This past week I watched a moving interview that CNN's Fareed Zakaria did with the Dasha Navalnaya, the daughter of Alexei Navalny, who is now imprisoned in Russia. For those who believe that imprisoning the political opposition could never happen in Israel, it's already been proposed by a far right member of the new government!!! The idea was rejected by Minister Ben Gvir - for now - but we'll see how the police respond to expected mass protests this weekend.

But what struck me about the interview with Dasha, currently a student at Stanford, was this exchange:

ZAKARIA: So, Dasha, I want to take you to that moment where you realize after he has been arrested, imprisoned, they have attempted to poison him, he's been if a coma, he comes out of this, he decides to go back to Russia. He must have realized that what is going to happen when he goes back to Russia is not good. He's going to get arrested, possibly -- they tried to kill him just months earlier. At that point, did you tell him, dad, don't go back? You're comfortably here in the West, organized opposition from Germany, from America, from Stanford.

NAVALNAYA: Well, of course, there was this little voice in the back of my head saying, you know, cuff him to your hand and never let go. You want your dad being by your side. But we never had a family conversation of whether he is going to go back. It was always something that we accepted as a family. We knew that he would want to go back.

You know, he's a Russian politician. We're a Russian family. You can't do Russian politics from abroad. You can't help a country being more prosperous and free from, you know, being on the West, in the Western country and living in a flat in New York and doing politics like that. So I'm happy.

ZAKARIA: And he's a great Russian -- I mean, this is obvious, but what might be worth reminding, you know, he loves Russia. He adores Russian culture. He taught you, you know, Pushkin, right?

NAVALNAYA: Yes, yes. He loves Russian literature. He gave that love to me. As a whole family, whenever we travel somewhere for summer vacation when I was little, we would always rate the cities, and Moscow would always be at the top. Because, you know, it's our home, we love it.

My whole family is there. My grandparents are there. My uncle is there. I -- whenever we have -- it makes -- it makes this work so much easier knowing that we're patriotic towards our country, and that we actually love the culture and the people, and, you know, I grew up in Moscow and I want to go back.

I rest my case. Imagine - your government tries to murder your father and then jails him, and, incidentally, dismantles democracy and invades a neighbor. Putin's government is arguable the worst on earth - but his arch enemy loves the country and people so much that he risks his life to return there.

The question should never be, "How can you still love Israel?' Just as in 2016 it was not, "How can you still love America?" The question must be, "How much are you willing to risk in order to save it?" What I am risking- and what I am asking you to risk - is paltry when compared to the Navalnys, for a country ruled by a far more malevolent force.

3) The Supreme Court's Chief Justice, chief opposition leader and other top Israelis are calling upon us to act.

This is not an election campaign. This is nothing less than a constitutional crisis. I've already referenced Alan Dershowitz and the editor of the Times of Israel. How about the Chief Justice of the Israeli Supreme Court? Here's what Esther Hayut said yesterday:

Unfortunately, if the plan for change that has been presented is carried out, the 75th year will be remembered as the year in which Israel’s democratic identity suffered a fatal blow.

See In fiery speech, Hayut says judicial shakeup plan ‘fatal blow to Israeli democracy’

Hayut said that independence is the “soul of the courts” and without it, judges won’t be able to fulfill their roles as servants of the public.

And finally, the opposition leader Yair Lapid wrote a front page op-ed in Ha'aretz today. Here's what he said (click here to read the full text).

Netanyahu is trying to calm things down while defending the judicial overhaul. He's sweating. He needs to feel the pressure from this side of the pond. That means us. If you've ever felt about Israel the way Dasha Navalnaya feels about Moscow; if you've ever loved Yehuda Amicha's poetry or the sounds of chirping birds in the Old City at sunrise, or the hummus at Abu Shukri, or the seniors who create masterpieces at Lifeline for the Elderly - or the soldiers who swear an allegiance to the purity of arms. And a Supreme Court that protects it all. If you ever felt toward Israel like Dasha does about Russia, you'll stand up for Israel now.

Shabbat Shalom,

Rabbi Joshua Hammerman

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