The victory of Benjamin Netanyahu’s right-wing coalition has many on the left lamenting the end of democracy in Israel. Even before the vote began, Sen. Robert Menendez (D., NJ) threatened damage to bilateral relations if Israelis voted to the right. The State Department has said it would boycott some right-wing ministers, and President Biden waited nearly a week before calling to congratulate Mr. Netanyahu. Still, Foreign Minister Antony Blinken apparently had time on Friday to call Palestinian President Mahmoud Abbas, who last stood for election (for a four-year term) in 2005.
What critics say has degraded Israeli democracy is the electoral success of Itamar Ben-Gvir’s party. Mr. Ben-Gvir’s critics cite his past in the far-right Kahanist movement. For all the consternation, one would think he was the prime minister-to-be, rather than the leader of a second-rate party, with seven out of 120 seats in the Knesset.
Still, those who said Mr. Ben-Gvir’s entry into government is unacceptable were unfazed by the outgoing government, which included Ra’am, a party affiliated with the Islamic Movement of Israel founded by a convicted terrorist; or the far left Meretz, with roots in an actual Stalinist party; or of Prime Minister Yair Lapid’s apparent willingness to accept support from Hadash, a still-communist party whose members of the Knesset recently justified terrorism against Israeli civilians.
Another theme in the dire prognoses for Israeli democracy is reforms to the legal systems that the new government may pursue. The measures would actually strengthen democracy and introduce checks and balances into a political system where the Supreme Court has far more power than its American counterpart.
Like the US Supreme Court, Israel strikes down laws as unconstitutional – even though Israel does not have a written constitution. The court, without statutory authority, has assumed the power to strike down any law or government action as “unreasonable”—that is, anything the judges don’t think is a good idea. The justices – there are currently 15 – decide which laws to grant “constitutional” status. They also dominate the committee that appoints new judges as well as lower court judges. Candidates do not undergo confirmation hearings before the Knesset.
The legal reforms being discussed would weaken the ability of sitting judges to choose their successors. The reforms would allow the Knesset to, in some cases, override Supreme Court rulings based on interpretations of Knesset legislation — much like the Canadian Parliament can do. Such a measure would be a far less radical check on the court’s power than the right-wing US Democrats have entertained as a way to rein in the courts.
For years, Israeli prosecutors have pursued Mr Netanyahu for the crime of “breach of trust”. Some in the incoming government are looking to do away with this offense because no one knows what exactly it prohibits. United States Supreme Court, i Schilling against the United States. (2010), rejected as unconstitutionally vague a similar statute denying “honest services.”
The potential legal reforms do not undermine the values Israel shares with the United States. Instead, they wanted to bring Israel closer to the American model.
On the Palestinian issue, the outgoing government was the most left-wing in a decade, and the first to include an Arab party. Yet the Palestinians still refused to negotiate. Diplomatic deadlock is not a function of right-wing governments – except for the one in Ramallah.
The military system of governance that Israel employs in the West Bank was a temporary measure established in the expectation that the Arab states and later the Palestinian Authority would trade land for peace. After decades of rejections by states from the Palestinian Authority and the rise of Hamas, it should not be surprising if Israel stops holding its breath and applies its civil law to the areas under its jurisdiction under the Oslo Accords.
In the United States and almost all other democracies, national territory cannot be relinquished simply by executive decree. Yet Mr. Lapid’s interim government in Israel, a week before the election, handed over parts of Israel’s territorial waters and offshore gas fields to Lebanon in exchange for nothing. This despite traditional limits on the authority of a minority government and an explicit law requiring a vote in the Knesset and a national referendum. Still, the Biden administration did not express concern about the rule of law. It welcomed the move.
Other countries that recently elected right-wing governments, such as Italy or Sweden, have not seen their leaders receive the silent treatment from Washington. The alarm over Israel’s new government is the equivalent of saying that Israel will only be in America’s good graces when it elects leftist governments. To is a challenge to democratic values.
Sir. Kontorovich is a professor at George Mason University’s Scalia Law School and a fellow at the Kohelet Policy Forum in Jerusalem.
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