An amazing seventy years, but challenges remain

Jamie Cowen 

Apr 24, 2018

I have often said that the nation of Israel’s modern presence is the greatest testimony to God’s existence in the world today. Why? Because in numerous passages in the Bible, it talks about the eventual return of the Jewish people to the Promised Land after years in exile.

In fact, some of the passages are so specific and detailed that it takes more faith to not believe in the Bible promises than to believe in them. On top of this, after seventy years, Israel’s achievements are breathtaking in numerous fields, e.g., water conservation, high tech, cyber security, medicine, agriculture, clean energy. In many respects, Israel has become a light to the nations, as foretold by the Biblical prophets.

 The Israeli Declaration of Independence asserts the following:

The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

Following the vote of Independence, and with that lengthy sentence above enshrined in the Declaration, the State of Israel became the world’s only Jewish and democratic state. Throughout the years Israel developed into a thriving democracy, the only one in the region, with a free press, individual rights, liberty and private property. Sadly, however, that democracy is now threatened. In a recent interview with the Times of Israel, Yair Lapid, head of the Yesh Atid Party, laid out the problems the country is facing:

Under Netanyahu, Lapid asserts, the determination to retain power at all costs is coming to threaten Israel’s very democracy — with the courts, law enforcement and the media all under sustained attack. Asked what’s wrong with legislation, currently contemplated by Netanyahu, that would prevent the High Court from striking down Knesset legislation it finds to be undemocratic, he answers starkly, with a rather unhappy laugh: “Because if tomorrow the 66 members of the coalition vote through a law saying we’re hanging the other 54 opposition members of Knesset from a tree, who are we going to go to?”

What exactly is Lapid referring to? Several years ago thousands of Eritreans and Sudanese crossed through Egypt and the Sinai Peninsula and entered Israel. Many of them reside in South Tel Aviv. Others are imprisoned in detention centers as illegal immigrants. Many of them have filed for asylum in Israel. Despite the fact that Israel has signed the international treaty on refugees, regulated by the United Nations High Commissioner for Refugees (UNHCR), Israel has processed only a handful of asylum cases out of the thousands of Africans who have applied for it. Rather than process these cases, Israel has sought to expel these individuals to other African nations without due process. The Israeli Supreme Court intervened numerous times to declare the government’s treatment of these refugees as unconstitutional.

Recently, the government entered into an agreement with the UNHCR whereby several Western nations would receive about one-half of the African refugees, and the other one-half would be absorbed into Israel. After the agreement was reached, numerous members of the Netanyahu government objected and forced his hand into reneging on the deal. In response, the government has proposed legislation allowing the Knesset to overrule Supreme Court decisions on this matter. In addition, several proposals are being considered to undo the Supreme Court’s ability to challenge the constitutionality of Knesset actions generally. This is what Yair Lapid was referring to, undermining the concept of judicial review.

What is judicial review? It is the means by which the judiciary, a theoretically non-partisan body, reviews laws or actions by the government to determine their legality or constitutionality. It becomes essential to protecting individual rights and liberty. In the United States it was the courts that helped to end racial discrimination by striking down so-called Jim Crow laws that had been enacted to deprive African-Americans of their rights.

Where does judicial review come from? In the United States, judicial review ultimately derives from the Constitution. In Israel, it’s more complicated. Interestingly, however, the US Constitution does not specifically authorize the judiciary to review laws. But in Marbury v. Madison, a very early Supreme Court case, the Court asserted its authority under the Constitution as a separate and co-equal branch of government to review and potentially strike down laws and actions by the other branches when the Court deemed those laws or actions unconstitutional. In other words, the judiciary becomes the final arbiter of what is a permissible state action.

Unlike the United States, Israel does not have a formal constitution, despite the fact that Israel’s Declaration of Independence actually called for the adoption of one. Primarily due to the secular/religious divide in the country, a formal constitution was never drafted. However, the First Knesset adopted a resolution that would allow a constitution to be formed in parts over time with enactment of individual Basic Laws that would provide a constitutional framework for the country. There are currently eleven Basic Laws, enacted during the years 1958-2001, ranging from the structure of government to individual rights.

Similar to the US Constitution, Israel has a Basic Law concerning the establishment of a Judiciary. Also, similar to the US Constitution, there is no provision in the Basic Law authorizing the Judiciary to review other laws. Prior to 1994 the Supreme Court did not invalidate Knesset laws. That situation changed drastically in the 1994 Bank Hamizrahi case. Legislation had been passed by the Knesset to undo certain debts owed to a bank. The bank claimed in its lawsuit that the Knesset’s action was unconstitutional. The Court used the case to assert judicial review of Knesset and government actions for the first time. It actually quoted from the US Marbury v. Madison case, and claimed that judicial review is an implementation of the principles of the rule of law, democracy and the separation of powers. If a law is deemed to be contrary to one of Israel’s Basic Laws, then the Court will strike it down.

Since that time Israel’s highest court has struck down several laws including shielding the ultra-Orthodox from the military draft, allowing Israel to build on privately owned Palestinian lands and forcibly relocating Africans to other countries. In recent years as the government has become more right wing, there seems to be less of a commitment to upholding basic democratic principles. This is most recently highlighted by attempts to weaken Israel’s court system. Judicial review of legislation protects against what is termed the “tyranny of the majority.” That was the gist of Yair Lapid’s hyperbole above concerning the majority’s ability to hang the minority.

Since its modern establishment, Israel has been a place of widely divergent views on just about everything. It’s not easy to build a society on the backs of immigrants from over 100 countries in the world with very different cultures. Yet, miraculously, Israel has not only survived but thrived. Certainly, it’s future depends upon God. On the other hand, sin, corruption and lawlessness led to exile in much earlier generations. Undermining the rule of law and limiting individual rights, especially minority rights, can lead to equally disastrous consequences.

http://kehilanews.com/2018/04/24/an-amazing-seventy-years-but-challenges-remain/

 

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