By T. Belman.
Canada had a similar debate when it was ugrading its Bill of Rights and Repatriating its constitution from Britain. (Til them we were a colony of Britain and only Britain could amend our constitution) In any event, it was intended to diminish Parliamentry supremacy by allowing the Supreme Court to rule legislation or parts thereof in conflict with provisions of the Bill of Rights. All provinces had to be in agreement with giving this power to the Courts. There was much opposition to hamstringing parliament so a compromise was worked out, namely, that a province could maintain its law, notwithstanding that it was over-ruled by the Court. This was called the “notwithstanding law”. The debate in Canada had to do with whether the Courts or Parliament should be the ones to decide on whether the legislation or the Bill of Rights takes precident.A similar debate is taking place in Israel. Neeman’s proposed law is an attempt to return some power to the Knesset. No one in Canada sought to use the argument that such a law was undemoratic as the Left in Israel does. Furthermore the Parliament, in passing the Bill of Rights, got to decide what rights were protected. In Israel, the Supreme Court, took it upon itself to determine what rights were necessary for the “dignity of man”. It should have returned the matter to the Knesset to legislate.
Quebec argued that it was a “distinct society” and should be treated as such. It wanted special rights to enforce its distinct society unencumbered by the Bill of Rights, an example of which was the right to enforce language laws in the province that precluded the right to use English on commercial signs. Similarily, If Israel were to pass a Bill of Rights to override the Court’s interpretation, it would have the right to protect Israel as a distinct society, i.e., a Jewishy state. In a democracy, ultimate authority should be with the people and not the Court, especially a Court that self-perpetuates itself.
Israel’s Justice Minister defends bill allowing MKs to bypass High Court
Yaakov Neeman says the bill would strengthen the status of basic laws, but opponents of the bill say it would do away with judicial review of legislation passed by Knesset.
By Jonathan Lis
Justice Minister Yaakov Neeman insists that all the criticism being leveled against his proposed Basic Law on Legislation is proof that the law is correct and necessary. The minister made that argument to a Knesset plenum yesterday, at a special recess session focused on the bill, initiated by one of its harsh critics, MK Zahava Gal-On (Meretz).
The proposed bill would give the Supreme Court the right to invalidate Knesset legislation if the court rules it conflicts with a basic law. But it also allows the Knesset to override the court by passing the law again, if 65 Knesset members vote for the override.
Neeman says the bill would set regulations for legislation, deal with the authority for legislating a constitution, and establish that basic laws take precedence over regular laws, by requiring their cancellation or amendment to go through four readings. “We are aiming to strengthen the status of the basic laws and assure that they cannot be altered with a regular majority. That’s anti-democratic?” he asked.
But Gal-On says by proposing the law, Neeman has revealed his desire to “conspire against democracy in the State of Israel. He wants the last world to rest with the Knesset, and to do away with judicial review. That way the aggressive majority can decide to undermine human rights, as with other legislative initiatives we’ve had here recently.”
The proposal was also criticized by Minister Benny Begin (Likud), who suggested the proposal be rewritten to reflect the recommendations of a committee Neeman himself had headed in 2004, which required the votes of at least 70 MKs to override the high court, rather than 65.
Neeman rejected accusations that he had tried to sneak the proposal past MKs by releasing it just before Pesach, saying the delay in its publication was technical and that he had showed it to then-Supreme Court President Dorit Beinisch in 2010.
@ CuriousAmerican:
Democracy in a society undergoing threat or crisis is the absolute worst form of government.
How did they know that? It was experimental, no other prototype to draw from. Democracy is a very accidental political system. It was never practiced on a large scale in antiquity, but only in small cities where participatory democracy remains viable. In all cases, democracy quickly eroded into demagoguery, tyranny, and then monarchy. Modern states erroneously identified as democracies are actually republics, the difference being that some basic values in republics are closed to democratic discourse; on the other hand, even theocracy allows democratic decision-making on mundane issues while the core values are kept non-negotiable. Democracy gained popularity during the Renaissance, when westerners marveled at everything ancient. Unlike the classic art, democracy remained popular because it allowed the ruling classes to rule as if by popular consent (manufacturing and twisting that consent) and provided academics with the opportunity to legitimately influence societies with social theories.
When you refer to founders which ones? The Federalists under Hamilton tried to subvert not only the system but the constitution as well. Their view of the office of presidency was of one which had all the powers of King without the name.
America has as great a dysfunctional system as we do, it was been camouflaged by Americas great wealth and the fact that America has not endured a constant threat to it’s existence. You could afford mediocre leaders. The only saving feature of the American system are term limits which means that bad leaders are limited to the amt of damage and destruction they can inflict. That was not always the case (FDR). There was a time when the states appointed their Senators who served at the discretion of the state legislatures.
Republicans and Democrats are equally corrupt, incompetent, and populist. Their programs are equally murky. No wonder US voters split between the Republican and Democrat electorate randomly, approximately half in each camp. In a democracy, when major forces are more or less equal, minor swing groups become decisive. Religious parties in Israel and swing districts in the US hold disproportional power over the countries’ policies.
The US, accordingly, fluctuates between pro-business and welfare policies, militancy and pacifism, moral conservatism and permissive nihilism. No policy is implemented, no end achieved, no constituency satisfied.
The ancient Greek democracies never debated such basic issues. All agreed on values: family, plunder, and trade are good. The democratic process determined how to reach those goals.
The enemies of America don’t need to fight the US and need to win but only wait for the democratic reversal. A war that drags four or ten years changes the US public mood, unseats the ruling party, and ends up with an American retreat.
Israeli political dysfunction gives us the immediate means to kick the bums out at any time they screw up badly enough. All things considered based on the leaders chosen till now I prefer to trade off of less stability and more power to the people.
Further thoughts on above:
The problem here is that your aim is a democracy.
The Founders of the American Republic knew that a Republic NOT A DEMOCRACY was the best form of government.
This is very important.
Parlimentary systems are TOO democratic.
The voting frachise should be democratic, but beyond that you want a Republic.
A) You need to write a solid constitution
B) The US Constitution is a good model. Forget that we now ignore it. The Constitution is still good, if we’d only abide by it. Remember a lot of the US Constitution was based on Old Testament Law. For ex: State Representation mimics Moses call to the people to elect elders from among each tribe (the tribes were allotted geographic areas and so the geographic areas elected elders).
The original statue of limitations was seven years … from the year of rest.
The US Constitution is a good place to start.
Unfortunately, Israel followed the British model.
The problem is not the Supreme Court. You need a court to be able to overrule bad laws from time to time.
The problem is the parliamentary system where the parties elect officials from their own ranks. The parties keep electing the old leaders again and again.
What you should have is a directly elected Prime Minister like the USA has a directly elected President, who is not a member of the legislature but independent, as an executive.
You do not need to get rid of the Supreme Court. That can be contained. What you need to do is get a real executive Branch, like we Americans.
Such a leader would be above a vote of confidence loss.
This is why a Presidential system is ultimately more stable, for all its faults, than a Parliamentary system.