Nine Minutes to Bash a Good Bill

Nine minutes of grace was all they could give this very important bill, until it, too, was subjugated to the shallow discourse that makes up the ongoing battle between the forces of light and the forces of darkness.

There are very few things that one can do in nine minutes. You can poach an egg, or boil water for coffee, or maybe scan the newspaper headlines, but not much more than that.

But what is known in Israel is that it took the leftist camp only nine minutes from the moment a memorandum about the proposed basic law on legislation was publicized, to read it, analyze all its clauses, consider their significance and come out with a sweeping objection to it, adding, for good measure, some heartrending cries about the end of Israeli democracy.

Nine minutes of grace was all they could give this very important bill, until it, too, was subjugated to the shallow discourse that makes up the ongoing battle between the forces of light and the forces of darkness. A discourse that is dominated primarily by ignorance, which is the best way to silence important public debate and leave us with no more than fiery slogans and sophisticated word-plays featuring Prime Minister Benjamin Netanyahu and Russia's Vladimir Putin.

Theoretically this should be no surprise. In the era of management-by-newspaper-headlines that we find ourselves in, there is always the rush to be the first to respond, since the first responder is quite often the only one who is given a chance to comment and can then say, "gotcha!"

What's worse this time is that even after four days of debate, the discussion is stuck in the same shallow water, with the same fear-mongering, end-of-days terminology, or, as one opinion maker told a radio interviewer, "If this bad law passes, we can shut down the rule of law." Such a situation is not just ridiculous, it's dangerous.

It's dangerous because this bill is critically important, precisely for those who want to fortify Israeli democracy and the power of the Supreme Court. It's dangerous because if this law is rejected, the delegitimization of the Supreme Court will continue, and for more than one good reason.

The Supreme Court has appropriated for itself the right of judicial review of Knesset legislation and to declare laws unconstitutional, in direct contravention of the Knesset's intent. It did this, convinced that there was no choice because the Knesset seemed paralyzed, and because it wanted to defend the downtrodden and the weak against the power and laws of the majority. But it did this in a crooked fashion, when the establishment of a constitution is itself in doubt, and without the express authorization of the people.

Its doing so generated enormous criticism, even within the legal community. The first calls of "who appointed you?" came from constitutional law professors in our own universities, whom no one suspects of belonging to the benighted forces. This judicial activism also led the public to lose faith in court, because many saw it as an attempt to impose on Israelis a judicial dictatorship of the unelected.

As a result, the Supreme Court, in too many instances, fears to do what it must to protect the weak (for example, when it rejected a petition to strike down Netanyahu's laws that reduced government allowances in 2003 ), because it felt it did not have the legal and public legitimacy to do so.

The proposed Basic Law: Legislation fixes all this. It empowers the Supreme Court to strike down laws. It acknowledges that we have a constitution, even if it isn't yet conclusive. It will silence those who hasten to yell "who appointed you?" against the Supreme Court every time it rules against their interests. It thus fortifies the power and authority of the Supreme Court, establishes the notion of an Israeli constitution and bolsters democracy.

True, there are things in the bill that need fixing. It would be better if the majority needed to override a Supreme Court invalidation of a law would be a larger number than the coalition majority at the time, but that's a secondary discussion. If the public discourse continues at its current shallow level, it is liable to scuttle the proposal altogether, which would be even more dangerous than the current situation since it would totally nullify the little judicial review that we have.

The democratic left should be the first to understand this and support the bill, even if it's been proposed by - gasp! - Justice Minister Yaakov Neeman, and even if it means fewer headlines to show its voters.