Monday, September 8, 2008
Castrating the Israeli Supreme Court
How many times have you heard this line: Look, I admit that there are problems with Israeli democracy, e.g., its treatment of its Arab citizens, and the Occupation. But the country is still at war with the Arabs, and in time, things will improve. After all, once the Arab citizens were under a military government. Now, at least de jure, they are equal citizens. Any restriction of civil liberties are temporary measures. As for the Occupation, when peace comes, it will cease to exist. And in the meantime, the Israeli judiciary is there to protect civil liberties. That sentiment, of course, forms an essential part of the faith of the Zionist liberal. For thirty years, I never questioned it. But what if the reverse is true -- what if there is a slow deterioration of civil liberties and the rule of law, both within Israel proper and in the Occupied Territories? And what if these civil liberties are being curtailed, not during a period of relative stress, but during a period of relative calm, like the present? What does the Zionist liberal then say about the prospects for Israel's future? On Sunday, the Israeli government approved Justice Minister Daniel Friemann's proposal to amend the Basic Law on the Judiciary in order to curtail the Supreme Court's power. Read about it here. Specifically, the Supreme Court would not be able to strike down any law that does not violate two Basic Laws (human dignity and freedom, and freedom of occupation) and when those two laws are violated, the court's decision could be overridden by a simple majority in Knesset. For example, if a majority of Knesset members voted on legislation banning Arabs from public beaches in Israel, the court could strike that law down -- only to see it overrruled by a simple majority of the Knesset. And if the Knesset passed a law barring Palestinians from seeking monetary compensation for damages done by the IDF, the High Court could not even intervene, as it does now. In other words, the Israel government's decision, if it becomes law, will castrate the Israeli judiciary system and remove the only bulwark of civil and human rights in Israel. Note that this decision was made at the calmest time in Israel in recent memory. The Second Intifada is dead, and no rocket falls on Sederot. By this decision the Israeli government says that in order to survive as a Jewish state, it cannot be a real democracy, but rather a banana republic, where the judiciary has little teeth and no independence. Of course, Daniel Friedmann also wants to politicize the process of the selection of judges. He hasn't been able to do that yet, but he will. The independent judiciary that Alan Dershowitz praised so highly in his Case for Israel (and with little justification, as Norman Finkelstein pointed out) will be a thing of the past. I don't believe in historical inevitability. But we are witnessing the continuing evolution of Israel away from whatever democratic roots it had, and, in my view, the seeds of this evolution are right there in the state founded in 1948. Note that this decision was not made by a rightwing government, but by a centrist government. And that is the silver lining. For in decisions like these Israel unmasks itself. It cannot appear as a virtual democracy, with a court upholding the virtual rights of West Bank Palestinians, a court that always opts for the security of the occupier over that of the occupied. Better that the sham so admired by Dershowitz, and so trumpeted by the Israeli foreign ministry, be exposed for what it really is. Yet for those, like the present writer, who care about Israel and who still find it painful when the truth of Zionism is exposed, the government's decision hurts. Illusions die hard.