The Red Card
Nothing has happened yet. The future governing coalition in Israel is not yet officially agreed upon. The demolition of democracy and the rule of law has not yet begun with full force. There is not yet a law in force to dismantle the only element of checks and balances in this state without a constitution, without a second chamber, without any other state organ with a democratic legitimacy of its own but Parliament, namely the independent judiciary. The people living in the occupied territories are not yet at the mercy of the violent right-wing extremist Bezalel Smotrich, who, as the future finance minister, is to be in charge of the civil administration in the occupied territories instead of the military. The violent right-wing extremist Itamar Ben Gvir is not yet Minister of National Security and thus master of the police and border troops. The convicted tax fraudster Arieh Deri is not yet Minister of Health and Interior, who, as a criminal, is actually barred from holding a government office by law, which is one of the reasons why the government plans to eliminate the independent judiciary.
But I guess it’s only a matter of days now.
I was at an event in Berlin this week with representatives of academia, think tanks, politics and business from Germany and Israel. At the beginning, the participants, Jewish and non-Jewish Germans and Israelis, were asked to signal how much they worry about democracy in Israel by raising either a green, a yellow or a red card. It was mostly the Israeli participants who raised the red card, and by far not just the usual left-wing human rights activists. Executive and legislative power over the state and over the constitution, they argued, is about to be placed in the hands of criminals and theocrats who do not accept to have that power be bound by law, but want to and indeed will destroy those legal bonds.
But isn’t that an exaggeration, a German participant objected. It was just an election, wasn’t it? Elections answer issues: issues of security policy, issues of economic policy. Likud, the largest coalition partner, is not a totalitarian party after all, especially since many of its supporters are quite unhappy with the coalition.
The Israelis disagreed. Economic policy had played almost no role in the election. It was an election for or against Bibi Netanyahu. Likud is a tool of Netanyahu’s interests, first and foremost his interest of not having to follow his predecessor Ehud Olmert into prison for corruption. Likud is therefore by no means necessarily a moderating factor in this government – at least not as far as constitutional policy is concerned. The neutralisation of the judiciary and the Supreme Court is a goal on which Likud and its theocratic junior partners can happily agree. And since there is no proper constitution in Israel that is out of reach for the government majority, the Supreme Court is the only (often woefully inadequate) protection that democracy, the rule of law and human rights have in Israel.
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The impression I received from this event is in strange contrast to the mild complacency with which, to my mind, most of the German public seems to be following the current formation of the government in Israel. The Israel correspondent of the Süddeutsche Zeitung, for example, recently played down the process of this government formation as “Bibi and the right-wing gang of rascals”, without touching on its constitutional dimension with more than a scant subordinate sentence. There are Netanyahu’s opponents on one side, according to whom everything will be very bad. There is Netanyahu himself on the other side, who says everything is fine. So the German newspaper reader can, as usual, make herself comfortable in the juste milieu, where she has felt so comfortable for a long time, and in many cases still feels, in the case of Hungary and Poland: Oh, well, as the saying goes, we’d best wait and see whether the dish will have to be eaten as hot as it is cooked.
But with constitutional policy – as with climate policy, for that matter – that wait-and-see strategy is a tricky one. Once the effects can be felt, it is too late. Once the constitutional ties are blown up, the judiciary has been stuffed with compliant minions, and the Supreme Court has been stripped of its controlling function, there is no longer any hope of salvation from the side of the constitution anyway. Wait-and-see means in fact taking a side. At best, one can delude oneself a little longer about which it is.
To the German public, it is in most parts, quite rightly and thankfully, supremely important never to take a position against the Jewish state. But what does that even mean if the Jewish state is no longer a democratic state? Whose state is a state anyway, in which there is no longer an independent court system and indeed no one at all who could prevent the government from suppressing minorities, opposition, political diversity and democratic competition? What is Jewish about a state that withdraws its promise of protection from millions of Jews around the world because the way they practise their religion does not seem orthodox enough to some theocratic rabbis? What does it mean to be a Jewish state when illegal occupation turns into de facto annexation and the occupied territories into a “Smotrichstan” of total disenfranchisement and defencelessness of the Palestinian population against the violence of the settlers? What does it mean then to be at the side of the Jewish state? To whom exactly should the solidarity of the Federal Republic of Germany and its society then apply?
Considering how long and intensively and with what governmental effort we in Germany have been discussing criticism of Israel and anti-Semitism and the boundary between both lately, it seems to me that we are desperately ill-prepared to answer these questions.
The week on Verfassungsblog
… summarized by PAULINE SPATZ:
The Federal Constitutional Court has ruled that the ratification law of the Own Resources Decision adopted on the basis of the “Next Generation EU” construction instrument is constitutional. MATTHIAS RUFFERT comments on the ruling. For THU NGUYEN and MARTIJN VAN DEN BRINK, the decision sends contradictory signals and raises the question of why Karlsruhe did not refer the case to the Luxembourg Court.
The federal government is currently discussing reform plans for naturalization. The CDU and FDP, among others, fear that making it easier to obtain German citizenship would reduce its value. SAMUEL D. SCHMID shows that these and other fears are unfounded. SINA FONTANA calls for legal policy debates on naturalization to focus primarily on the state’s responsibility for integration. And MARIA MARTHA GERDES explains why the reform of naturalization law will only work with an additional reform of the law on expatriation.
The ECJ has ruled that information on beneficial owners of companies may not be made available to the public. TRISTAN RADTKE shows why this does not mean a complete loss of transparency.
On 30 November, the European Commission recommended freezing a huge part of the EU funds for Hungary in two procedures. KATI CSERES argues that the Commission should have demanded a full and effective role of the Hungarian Competition Authority in protecting the EU budget. THU NGUYEN untangles the two procedures politically and economically and shows why they are currently stuck in a political limbo with Brussels threatening to withhold funds and Orbán threatening to use his veto powers.
The ECtHR has found that the Hungarian parliamentary electoral system violates the human rights of minority voters. In her analysis, ANNA UNGER reviews the unlawful situation and the necessary actions resulting from the judgment.
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Vom 16. bis 17. Juni 2023 findet an der Martin-Luther-Universität Halle-Wittenberg die 2. Jahrestagung des Forums ‚Junges Nachhaltigkeitsrecht‘ (JNR) statt. Im Zentrum steht das Thema „Nachhaltigkeit im Wandel: Rechtliche Perspektiven aus Theorie und Praxis”. Interessierte Nachwuchswissenschaftler*innen sind herzlich eingeladen, bis zum 1. Februar 2023 Abstracts einzusenden. Der Call for Papers steht hier bereit.
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Latvia revoking an independent Russian TV channel’s broadcasting license raises questions of EU media and Internet law. VALENTINA GOLUNOVA shows that EU law is powerless when confronted with possibly unjustified national restrictions against the freedom of the media and the freedom of expression.
In a case of serious human rights violations against a diplomat’s domestic worker, the UK Supreme Court has taken a quibbling route around diplomatic immunity. HANNES WEIGL discusses the ruling and shows what way around the diplomatic dilemma might be feasible in German law.
The Indian Government’s latest attempt at building a comprehensive data protection and regulation framework is the draft Digital Personal Data Protection Bill. SHREYAS SINHA analyses the Bill from a constitutional law perspective and finds it to be a government usurpation of power.
Indonesia’s new Criminal Code criminalizes both sex and cohabitation outside marriage. IGNATIUS YORDAN NUGRAHA explains the background of these provisions and analyses what they imply for Indonesia.
MING-SUNG KUO takes on two misconceptions characteristic of Taiwan’s frustrated constitutional reform: the conflation of legitimacy and consensus and the failure to distinguish between the decisional and the confirmational role of referendum in constitutional reform.
The New Zealand Supreme Court declared the legislated minimum voting age of 18 years to be – unjustified – inconsistent with the right to be free from discrimination. John Ip gives an overview of the decision and its possible consequences.
Our blog debate on Restitution, Colonialism and the Courts continues with texts by JUDITH HACKMACK, EVELIEN CAMPFENS & ISABELLA BOZSA, NATALIA LOYOLA DAIQUI & SEBASTIAN-MANÈS SPRUTE and ISABELLE REIMANN & NAHED SAMOUR. SARAH IMANI & ANNE SCHROETER close the debate.
In the second season of our RuleOfLaw podcast with the German Bar Association we focus on attacks on attorneys and their work in contexts of democratic backsliding. In the third episode, LENNART KOKOTT talks to SHABNAM SALEHI about the human rights situation in Afghanistan and to MATTHIAS LEHNERT about the shortcomings of the German and European migration law system.
That’s all for now. All the best, and see you next week!
Max Steinbeis