Unless pro-democracy forces wake up soon, they will find themselves having to add another sad day to the calendar week between Israel’s two national remembrance days — for the country’s fallen and for victims of the Holocaust. It will be known as Democracy Remembrance Day. On the days leading up to Israel’s 70th Independence Day (April 19), the government tried to take yet another big step toward ending the independence of its judiciary.
On April 15, one man, Attorney General Avichai Mandelblit, blocked a government-proposed law limiting the powers of the Supreme Court. In fact, this bill would enable the government (by a special Knesset majority) to ignore High Court rulings against laws it considers unconstitutional. For Mandelblit, this government measure represents a similar threat to the one he described in 2016 as “the end of democracy.” In September 2016, Mandelblit took a stand against the government’s proposed Regularization Law approving the expropriation of Palestinian lands in the West Bank for use by Jewish settlers. He warned at the time that the proposed bill would deal a blow to the constitutional defense of human dignity and liberty anchored in the Basic Law: Human Dignity and Liberty, and he subsequently refused to defend it against petitions to the Supreme Court challenging its legality. His current objections to the proposed government legislation known as the “Override Clause” foiled an attempt by the right-wing government to jail African asylum seekers and infiltrators.
Even Prime Minister Benjamin Netanyahu, who has no qualms about bad-mouthing close associates who he has deemed to have strayed from the straight and narrow (meaning, from his continued hold on power), would be hard-pressed to accuse Mandelblit of left-wing liberalism. Netanyahu was the one who appointed him previously to the position of Cabinet secretary and then promoted him to attorney general. Moreover, Mandelblit’s predecessor in office, Yehuda Weinstein, also a Netanyahu appointee, openly challenged the Override Clause when it first came up for consideration in 2014. Weinstein refused to cooperate with legislation that threatened, as he put it, to lift the restraints placed by the Basic Law: Human Dignity and Liberty on the power of the majority in a democratic nation to harm its minorities. A special announcement issued by his office in reaction to initiatives limiting the Supreme Court’s authority said an independent Supreme Court is vital for the sustainability and resilience of the State of Israel as a democracy, promotes positive values and human rights, and contributes to Israel’s international image as an enlightened and progressive state.
Michael Ben-Yair, who served as attorney general in the 1990s in late Prime Minister Yitzhak Rabin’s government, also believes the clause overruling Supreme Court decisions would constitute an end to democracy in Israel. In an interview with Al-Monitor this week, Ben-Yair said efficient oversight by the judicial branch of government constitutes the lifeblood of the democratic system. He argued that majority rule based on the democratic values — defense of minority, human, personal, civil and group rights — enshrined in the country’s basic laws does not fear judicial oversight. On the other hand, the former attorney general went on to say, “Majority rule not based on democratic values uses its parliamentary power to execute undemocratic moves and becomes a tyranny by majority rather than majority rule. To do so, it seeks to weaken the judicial branch and castrate its judicial oversight by a broad override clause.”
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