Israels Demokratie steht vor Gericht – Seite 1
At shortly after nine o’clock, the proceedings on the future of Israeli democracy begin in Courtroom G of the Supreme Court in Jerusalem. The 15 Supreme Judges are all present for the hearing. A first in the history of the Jewish state and a symbol: The rule of law assembles its entire team of defenders to save itself from abolition.
The anti-liberal government of Benjamin Netanyahu is planning a comprehensive overhaul of the judiciary. At the end of July, the Knesset, Israel’s parliament, passed a key element of this so-called reform. The new constitution abolishes the doctrine of adequacy, a central legal principle of the country. As a result, the Supreme Court loses the ability to challenge extremely inappropriate decisions made by the government or individual ministers. There is a risk of disempowering the court, which is the sole guarantor of the separation of powers in Israel.
A total of eight complaints have been filed by citizens against the law at the Supreme Court. The legal remedy can be compared to the German constitutional complaint. The difference is that Israel does not have a constitution and therefore no constitutional jurisdiction. Instead, the country has basic laws with constitutional character. They have the same status as the basic laws in Germany, but they lack a written framework to protect them. Legal principles such as the doctrine of proportionality fill this gap. Without them, the separation of powers cannot be ensured.
The judges are facing an existential problem.
The government’s plans plunge the country with its approximately ten million inhabitants into a constitutional crisis and pose an existential problem for the judges: No matter how they decide, the situation could worsen as a result.
All the seats in the hall are occupied. Journalists, activists, scientists, along with the German ambassador Steffen Seibert and one of his employees. And cameras everywhere in the room, the hearing is being broadcast live. Israeli TV channels switch to special programming, and there is a feeling in the court similar to that of a public viewing: another room has been opened where interested individuals can follow the event on a television. A father has brought his elementary school-aged children, and a woman with a sun hat takes photos until a court official reprimands her. The people can witness the fight for democracy.
In Saal G ergreift als erste Gerichtspräsidentin Esther Hayut das Wort. Bei dem neuen Gesetz handele es sich um „eine Gesetzesänderung, die die Grenzen dessen überschreitet, was Israel als jüdisches und demokratisches Land bewahren würde“, sagt sie – und bringt damit das Dilemma auf den Punkt. Ohne Verfassung, die klar ausformuliert, was verfassungsgemäß ist und was nicht, fehlt dem Recht das konkrete Werkzeug, um gegen Verstöße dagegen vorzugehen. Dem Obersten Gericht dient die Unabhängigkeitserklärung von 1948 und der Katalog an Grundgesetzen als grobe Grundlage, um im Präzedenzfall über die Beschwerden zu entscheiden.
„I cannot reword“
The pressure is high, especially on President Hayut, who had already clearly opposed the renovation plans in January. She stated that these plans represented a „fatal blow to the independence of judges and their ability to act.“ Since then, she has faced attacks from the government coalition, which includes right-wing extremist ministers. Now, her 70th birthday and retirement are approaching in mid-October – if she wants to decide on the „fatal blow“ herself, she must do so soon.
There is currently no consensus among the judges on how to proceed with the case. That is why all of them are participating in the hearing. They are also divided on whether the court even has the authority to annul or modify a constitution. Therefore, the arguments of the complainants and a thorough examination of possible procedural errors will be crucial.
Mit der Demokratie ist es wie mit einem Tisch
First, in the morning, the government is allowed to defend itself in court. Simcha Rothman speaks, one of the architects of the so-called reform that critics have long referred to as a coup. Rothman says that this hearing is a failure of the court and denies Israel’s democratic character, raising the question of whether the judges are biased. His argument is that the majority of Israeli voters have chosen this government and its plans to disempower the court, so the court does not have the right to challenge this decision. One judge buries his face in his hands. Another says he would be very happy if Rothman would just finish his presentation.
Mit der Demokratie ist es wie mit einem Tisch. Der braucht mindestens drei Beine, um stabil stehen zu können. Entsprechend wackelig ist das Argument, dass allein die Meinung der Mehrheit, repräsentiert durch Parlament und Regierung, das Fundament staatlicher Entscheidungen bilde – und entsprechend verstört wirkt das Oberste Gerichts angesichts der Reden der Regierungsvertreter und ihrem Rechtsbeistand, dem Anwalt Ilan Bombach. Den musste die Koalition anheuern: Generalstaatsanwältin Gali Baharav-Miara, die eigentlich für die Rechtsinteressen der Regierung spricht, hatte sich geweigert, ebendiese zu vertreten. Wie auch Esther Hayut gilt Baharav-Miara als scharfe Kritikerin der Umbaupläne und sieht sich längst nur noch gegenüber dem Recht loyal.
The opponents are talking about a judicial coup.
What kind of country is it where a private lawyer has to defend the government’s interests against the only guarantor of the separation of powers? That is one of the questions that people who built Israel might ask. In the entrance area of the court, there is a painting. Among others, Shimon Peres and Yitzhak Rabin can be seen. Both men were former prime ministers of Israel. In 1994, they were awarded the Nobel Peace Prize together with the then Palestinian leader Yasser Arafat. A year later, Rabin was assassinated by a right-wing extremist settler.
Now, almost 30 years later, those who would have approved of Rabin’s assassination are in power, say the opponents of the renovation plans. They take turns speaking in the late afternoon. „We are in the midst of a judicial coup,“ says Eliad Shraga, a lawyer and chairman of the Movement for Good Governance in Israel. Shraga is one of the most prominent critics of the government and points to the other laws that are part of the planned renovation. However, Esther Hayut points out to him that this is not sufficient reasoning to justify the annulment of the law from July.
Tyrannei der Mehrheit oder anhaltende Proteste
By evening, the court will gather the arguments of the complainants. It has a maximum of four months to make a decision. Several government members have already announced that they will not abide by the decision if the court votes for annulment. They provide a glimpse into the most extreme scenario: a „tyranny of the majority,“ as Israeli constitutional lawyer Suzie Navot described it in an August guest article for ZEIT ONLINE.
Even if the court dismisses the complaints, the protests against the judicial system that have been going on for nine months now would remain, as well as the deep division in the country. According to recent surveys, three-quarters of Israelis therefore wish for a compromise. The reform should be put on hold and a constitutional process should be initiated. However, it is uncertain whether the current government would support such a process. So far, all discussions on this matter have failed.