Analysis from Israel..
08 December '16..
In 2015, following lengthy negotiations, President Barack Obama concluded an executive agreement marking the accomplishment of a cherished policy goal: the nuclear deal with Iran known as the JCPOA. Also in 2015, after similarly lengthy negotiations, Prime Minister Benjamin Netanyahu concluded an agreement realizing a long-cherished policy goal of his own: a deal enabling development of Israel’s largest natural-gas field by a private American company and its Israeli partner. Both agreements included a commitment by the respective governments to refrain from adverse legislative action over the next ten to fifteen years: in Obama’s case, action to reinstate nuclear sanctions against Iran; in Netanyahu’s case, action to alter the regulatory regime for natural gas to the disadvantage of the private energy companies.
As it happens, neither country’s executive branch has the authority to bind the legislature without the latter’s consent. But this didn’t trouble either the Iranians or the energy companies; they took it for granted that both executives would use all of the considerable power at their disposal to prevent such legislation, and that sufficed.
But what about the role of the third branch of democratic government, namely, the judiciary? That is where the two stories diverge. The Iran deal was never challenged in an American court. But in Israel, two left-wing opposition parties (Zionist Union and Meretz) and two nongovernmental organizations, alarmed by the encroaching specter of capitalist development, immediately petitioned the country’s supreme court (also known for some purposes as the High Court of Justice) over the gas deal—and won. The court struck down the agreement, saying the government either had to procure legislation enacting the prime minister’s commitment to regulatory stability or renegotiate the deal to exclude the commitment altogether.
A week later, speaking at a conference of the Israeli bar association, Justice Minister Ayelet Shaked accused the court of wielding its power “irresponsibly” by intervening in “political and macroeconomic questions” that were better left to the elected branches. She also reiterated a longstanding pledge, in her role as head of the judicial-appointments committee, to seek the appointment of justices to the court who would respect the government’s “authority to act on political matters that don’t violate human rights.” For this effrontery, opposition members of the Knesset promptly accused her of undermining democracy and demanded her dismissal. MK Shelly Yachimovich of the Zionist Union, for instance, charged Shaked with “trying to destroy the legal system’s independence, intimidate judges, and threaten them,” adding that if this sort of behavior continued, “Netanyahu would no longer be able to boast that Israel is the only democracy in the Middle East.”
This was hardly the first time in recent years that domestic critics of Israel’s government have accused it of “anti-democratic” behavior that wasn’t actually anti-democratic at all. But such accusations have served to obscure the real anti-democratic revolution that has occurred in Israel over the last few decades: the judiciary’s steady usurpation of policy-making powers that were once reserved—as they still are in other democracies—for Israel’s executive and legislative branches.
(Continue to Full Essay)
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