May 11, 2012 § 2 Comments
For those who are not familiar with him, Silvan Shalom is Bibi Netanyahu’s political nemesis and constant foil. He is also somewhat inconveniently one of the vice prime ministers and Netanyahu’s erstwhile main challenger for the Likud leadership. I wrote this in March:
Netanyahu and vice premier Silvan Shalom are long time rivals who do not like each other. The two go out of their way to antagonize each other by scheduling conflicting events and trying to embarrass the other through tactical voting on legislation, and Netanyahu even made sure that Shalom’s face was blocked in the official picture from the Cabinet meeting in which the Gilad Shalit deal was approved. While Shalom often comes across in these confrontations as bumbling and hapless, his resentment of Netanyahu is at the boiling point and Bibi cannot afford to make any of the younger MKs unhappy and risk a genuine leadership challenge within Likud.
Shalom has formally challenged Bibi to be head of Likud twice and both times he has lost, but he is still constantly looking for an opening. Today, while speaking to Moshe Rosenbaum, who is the chairman of the Beit El regional community council which has jurisdiction over Ulpana, Shalom called for an authorization law that would retroactively legalize all settlements and outposts since he believes that fighting for individual hilltops on a case by case basis is not supportive enough of the settlement project at large. These comments came after a cabinet meeting of senior ministers (which did not include Shalom) in which no decision was taken on whether to comply with the High Court order to demolish Ulpana by July 1, and in the midst of pressure from Likud MKs for the government to pass a law bypassing the High Court entirely.
As I have said a couple of times this week, bringing Kadima into the government gives Netanyahu lots of room to maneuver within the larger coalition, but it does nothing to alleviate – and even intensifies – his problem within his own party. Shalom is naturally trying to seize upon this, knowing that Netanyahu needs to placate the hardline members of what is after all a pro-settlement party but that doing so will cause trouble for Netanyahu with Mofaz and Kadima. Likud’s fault lines are being exposed, and it is going to be a Herculean task to try and keep the party in one piece without causing a major political crisis between the Knesset and the High Court. I don’t know that doing so is feasible, and I remain convinced that Likud is going to fracture and that an official split is coming at some point. Meridor staked out his position yesterday and Shalom has staked out his position today – the question is, where does Netanyahu ultimately stand? The answer is not one that he is going to be able to avoid providing for too much longer.
April 9, 2012 § Leave a Comment
The U.S. is not the only place where there is currently a dispute between the government and the courts over the proper scope of judicial review. Israeli Justice Minister Yaakov Neeman has proposed a bill allowing the Knesset to reintroduce and pass laws that have been invalidated by the High Court with a majority of 65 MKs (the Knesset has 120 members, so this more than a simple majority but far from a supermajority). According to the bill, during the first period following its passage, only a regular majority of 61 would be required to overrule the High Court, and the duration of the “first period” is not defined which means that the higher number of 65 might potentially not ever kick in.
The philosophy behind such a bill might seem problematic at first glance, but the notion that the High Court should have the absolute final say is not an ironclad rule of democratic governance. As of now, there is no mechanism to annul an Israeli High Court decision, which gives an unelected body an enormous degree of power and upsets the principle of checks and balances. In the U.S., for instance, a Supreme Court ruling on the unconstitutionality of a law can be undone through a constitutional amendment which then puts the law beyond the scope of the Court’s authority. This means that the judiciary is able to check legislative excesses that violate the Constitution, but a mechanism remains to make a popular measure constitutional if it can clear the extremely high bar of passing by a vote of 2/3 in both the House and Senate and being ratified by 38 out of 50 states. In Israel, however, there is no written constitution and therefore such a process is unavailable. In Britain, the Supreme Court only has limited judicial review and cannot overturn many forms of parliamentary legislation, which is essentially the opposite of the current state of checks and balances in Israel. The proposed Justice Ministry measure is an effort to move Israel away from the extreme pole of judicial supremacy that it currently occupies and closer to the U.S. model of having a legislative override.
Of course, the glaring problem with this comparison to the U.S. is that the specifics of the bill do not create a presumption of a final say for the High Court since the standard for override is barely higher than what is required to pass a bill in the first place, and due to the ambiguity of the proposal may not be higher at all. The principle behind this proposal is a good one given that the balance of power is currently tipped entirely away from the legislature and toward the judiciary, but the devil is in the details, which in this case arise due to the nature of the Netanyahu coalition. The High Court has recently weighed in on some high profile issues – the Tal Law, the Migron evacuation, etc. – which puts pressure on Netanyahu and Likud to do something to mollify both the ultra-Orthodox and settler coalition partners, and this seems to be their best bet. It will also be popular with right wingers who abhor the High Court in general and want to put it in its place. In many ways the specifics of the proposal make it clear that this is less about creating a democratic balance between two branches of government and more about punishing the High Court for its recent decisions.
The other important point to note here is that Ehud Barak has come out strongly against the proposal, adding further strain to the relationship between him and Netanyahu that is already in the news over their clashing statements on Israel’s position toward the P5+1 nuclear talks with Iran. As I noted last week, events are coming to a head in the Netanyahu-Barak partnership that call into question how much longer it can survive, and the High Court proposal is just the latest wedge that is creating a fissure between the prime minister and the defense minister.
March 20, 2012 § 1 Comment
The Israeli Supreme Court issued a ruling today that overturned a law remaining on the books from the Ottoman period allowing settlers to claim ownership of land that they did not previously own if they have farmed it for at least ten years. Law students will immediately recognize the parallel to adverse possession, which is a common law concept relating to property that allows someone who openly, notoriously, and continually possesses someone else’s land to gain ownership of it after a set amount of time (I have blocked most memories of law school from my mind, but I seem to recall seven years as being the minimum). This Supreme Court ruling does away with the use of adverse possession in the West Bank, and it should be applauded for two reasons.
One, there is a distinction to be made between settlers who have used the law to gain possession of farm land and the type of adverse possession law that exists in the U.S. The reasoning behind adverse possession in U.S. common law is that we want to maximize the efficient use of property, and so if the adverse possessor is using the land in a productive manner and the land’s true owner is neglecting it, utility maximization dictates that the person using the land should get to continue to do so legally. There is an important component to this, however, which is that the adverse possessor does so openly and notoriously, which gives the land’s owner adequate notice and opportunity to challenge the adverse possessor. In the West Bank cases, the original Palestinian owners have largely not been afforded the opportunity to evict the settlers farming the land or have been blocked from challenging the settlers in court due to the military’s jurisdiction over the West Bank. Today’s ruling rights what is a clear wrong, and does not allow settlers to, in the words of the court, invade land rather than honestly take it.
Two, that the Israeli Supreme Court stepped in to overturn this law on behalf of Palestinians in the West Bank is an important reminder that Israel is indeed a democracy and even in matters pertaining to the West Bank the rule of law can prevail. The usual caveat applies, which is that Israel’s actions in the West Bank do not befit a democratic state and its use of military law there should be ended as soon as possible. Nevertheless, those who loudly proclaim Israel to be an authoritarian polity across the board are wrong, and today’s decision illustrates that in a meaningful way.