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The Supreme Court, Jerusalem. (photo credit:Wikimedia Commons)

US President Donald Trump and numerous Likud MKs and ministers believe that the separation of powers means the judiciary should avoid interfering with executive decisions, or with laws passed by the legislature. In other words, they are inclined to belittle the legitimacy of judicial review, under which the courts may review executive and legislative decisions on grounds of unconstitutionality, illegality or unreasonableness.

In Trumps case the issue came up in connection with his executive order, issued on January 27, suspending the US refugee resettlement program for 120 days, restricting entry to the US from seven Muslim countries for 90 days and suspending Syrian refugee resettlement indefinitely.

When Seattle Federal District Court judge James Robart temporarily blocked the executive order on February 3, Trump tweeted: The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned! When on February 9 the San Francisco-based Ninth US Circuit Court of Appeals upheld the lower courts ruling, Trumps reaction was that courts seemed to be so political, after he had previously implied that in his opinion the courts are biased. The court itself had rejected the administrations claim that it did not have the authority to review the presidents order.

In Israel the issue of the right of the High Court of Justice to review government policy, as it manifests itself in legislation and policy measures, emerges with growing frequency as Israels current government pursues increasingly controversial policies, which even the legal gatekeepers sometimes find difficult to defend. In reaction, members of the opposition are increasingly resorting to the HCJ in an attempt to redress policies that they claim constitute a danger to Israels democracy and future. Currently the HCJ is being called upon to review the so called Regulation Law that was passed by the Knesset last week, and which the attorney- general has refused to defend in court.

The reactions of the government and its supporters have not been as crass as Trumps reactions, though especially Bayit Yehudi ministers and MKs have been known to attack High Court justices for issuing rulings critical of the governments policies (especially in Judea and Samaria), and one MK Moti Yogev suggested that a bulldozer should be sent to tear down the court.

Trump accused the American federal courts of being political (i.e. liberal), even though the American system ensures that both liberal and conservative judges get appointed over time, with the balance being tilted alternately to one side or the other depending on the identity of the president.

In Israel the argument on the Right is that the system is permanently tilted in direction of the secular, liberal Left, and that as long as the method for selecting new judges is not amended, the bias against religious, conservative judges will continue. It is thus not surprising that there are voices on the Right that would like to change the method of selecting judges, and until that happens limit the ability of the opposition to petition the court on issues on which the Knesset has decided.

While it cannot be ruled out that in future an attempt might be made to force President Trump out of office before his term is over on legal grounds of one sort or another, in Israel Prime Minister Benjamin Netanyahu and his supporters are accusing the opposition is trying to oust him from office by means of a flood of media investigations some of which have turned into official police examinations and investigations.

Netanyahu and his supporters are arguing that if the opposition wishes to bring down the government and its head and replace them, it should do so by means of elections, and not legal proceedings against the prime minister that resemble a witch hunt.

The question is whether the accumulation of suspicions regarding the conduct of the prime minister and his family, some related to material benefits received from extremely wealthy acquaintances with or without the latter expecting to receive something in return; some having to do with highly questionable media-related deals designed to ensure Netanyahus remaining in power indefinitely; yet others related to alleged corruption in Israels arms acquisitions, involving persons some of whom are intimates of the prime minister should simply be set aside until Netanyahu is no longer prime minister.

If Netanyahu were accused of outright criminal offenses, the answer to this question would clearly be negative. The current situation is not clear-cut.

However, despite the fact that each of the suspicions against Netanyahu if taken separately dont amount to much, action should be taken immediately, because taken together and over time, all these affairs, combined with Netanyahus constant proclamations he will remain in office for a long time to come (what other prime minister of a democratic state talks like this?) create a highly disturbing picture.

Contrary to what I wrote two weeks ago, Netanyahu has now started accusing the media of spreading fake news in connection with all the examinations and investigations being carried out against him, but without citing a shred of evidence to refute the accusations leveled against him. It is really a question of how the disturbing facts are interpreted. This should be done by the legal authorities, not the lay voters, and the sooner the better.

If the court decides Netanyahu has done no wrong so be it.

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Think About It: The courts and democracy - Jerusalem Post Israel News

On 31 January, during an evening session that was suspiciously secretive, the Romanian government adopted two ordinances changing the countrys penal code. The measures were immediately seen by many as a clumsy attempt to decriminalise certain corruption offences, with the main beneficiaries being the politicians of the ruling party. Street protests broke out during that night, culminating last Sunday in the biggest demonstration since the fall of communism.

These events bring into sharp relief the main features of a volatile situation in eastern Europe where three forces vie for dominance: disconnected and sometimes corrupt traditional politicians, increasingly impatient and angry publics and assertive demagogues.

The east central Europe that shed communism in 1989 is a convenient laboratory to observe the emergence of a new politics. It is not necessarily due to its politicians being more corrupt, its demagogues flashier (who can compete with Trump?) and its publics angrier. It is more because its democracies are still fresher, more basic, their institutions not yet wrapped in a resilient layer of protective pro-democratic cultures. The whole system is thus more exposed to pressure tests.

Such tests should be easier to withstand in countries ensconced in the EUs legal and institutional structures. So that this volatility takes place within the EU provokes, in some, extra disquiet. The EU can and should act against leaders transgressions, for example in Hungary or Poland where the rules of constitutional checks and balances have been dangerously manipulated. But those in western Europe who look at these events with scorn and wonder why certain western values have not extend eastwards might be confounded by recent events, for instance, rising populism in Britain, France and the Netherlands.

The end of communism resulted in the emergence of nearly 30 countries seeking to rebuild their economies, redesign their political systems and reinvent their identities. In the early 1990s, there was no economic blueprint other than some version of what we today call neoliberalism. In politics, the imperative of building liberal democracy was accepted as a holy mantra, regardless of the actual intentions of the builders. In culture, it was let a million flowers bloom after the nightmarish years of censorship. Some countries in central Europe and the Baltic region have achieved remarkable successes on the path to this triple goal. For some time, east central Europeans, though struggling, sometimes suffering and making mistakes, were building solid democratic systems. Then something snapped. No doubt the economic crisis of 2008 played a role, yet that does not explain what happened. In Hungary, the old political systems went into a tailspin in 2006 when the then prime minister admitted his party won elections due to lying. In Poland, the 2008 crisis was less severe than in almost any other country in Europe, yet in 2015 vocally anti-status quo parties won elections.

How to explain this? In east central Europe, as elsewhere, the rise of populism is often explained by a combination of economic and cultural factors. But in this region, economic discontent is frequently directed at the newly instituted neoliberalism, often regardless of its actual results.

According to research from Ronald Inglehart and Pippa Norris, there is a demand side explanation, centring on cultural disorientation rather than economic deprivation. People are warming up to right-wing populist assurances that their traditional world is not totally lost to the post-materialist, cosmopolitan culture promoted by urban elites. In east central Europe, particularly in Poland, this dream of restoring the paradise lost, of the secure home, often takes strong nationalistic overtones, intertwined with a sense of religious superiority. Quite a few politicians on the right assert, sometimes openly: we carry the torch of pure Christianity already irreversibly corrupted in the west.

While these theories explain much, particularly about the demand side of politics, there is additional work to be done on the supply side. Why is there such discontent, for example, in Poland, where the economic situation is better than in many countries that did not acquire a populist government? It may be that the ideological packaging matters. If so, we need to pay more attention to the framing of problems, for example, by skilful demagogues.

The anger can be channelled in many ways. In the not so distant past, it used to be directed leftward, but the demise of communism, followed by the gradual decay of post-communist social democrats, created a severely truncated political field. It now ranges from the murky middle to the far right. The voices of the left are weak. A lack of supply (of political programmes and organisations) from the left swings the demand to the skilful suppliers of the day: rightwing populists. This is clearly visible in the post-communist world.

There is a danger that the anger channelled by populists may overcome weak institutions. That is why east central Europe is such a critical test area. While support for democracy as a desired system is not particularly weak, a set of democracy-sustaining cultural reflexes is not as developed as in elsewhere. A sizable portion of the populace can be convinced, it seems, that the protection of the rule of law and rule-bound governance are not as important as a system that allows unadulterated expression of peoples will. Such a trade-off is the hallmark of populism.

Social anger can be expressed more or less directly or through the medium of an imposing cultural frame. In Romania, where the struggle against corruption has been at the forefront of public life for some time, the anger has been vented directly against corrupt and scheming politicians. In Hungary and Poland (or Britain, France, the Netherlands and the US), it has been channelled through populist frames skilfully promoted by demagogues. This is much more dangerous for democracy. Populists cannot solve problems, but can instil in us that simple solutions exist. We are told such solutions are not hard to implement, but we first must return to our pure collective selves.

Once we swallow the bug of populism we are less likely to rekindle our faith in liberal democracy; it is also difficult to wake up from the somnambulic infatuation with an imagined polarised world where easy diagnoses and simple solutions work.

Professor Jan Kubik is director of the UCL School of Slavonic and East European Studies

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Brexit can wait. Europe's pressing worry is its fracturing eastern democracies - The Guardian

MK Glick says Supreme Court overruling laws passed by the Knesset too often to be democratic, has become a separate power unto itself.

Aruz Sheva Staff, 12/02/17 21:54

MK Yehuda Glick (Likud) criticized the Supreme Court Sunday as he expressed his support for a bill which would prevent the court from overturning laws passed by the Knesset.

In an interview with Radio 101.5FM, Glick said: "This is a situation in which there is an existential threat to our democracy. There is an election [for legislators] every four years but it (the Supreme Court) has decided that it will decide what is good for us...Unfortunately, the Supreme Court has become a threat to democracy."

"Once again the Supreme Court annuls laws, and it is not entirely clear where that authority comes from. Once that happens every other day, it becomes something that is blatantly anti-democratic. We need to get back to a reality in which there is a balance and each side knows its limitations.

"As soon as the Supreme Court shows that it preempts authority and rules independently, and does not allow a place for democracy, we must bring this [phenomenon] to a halt. A car without brakes can lose its grip on the road [and fall] into an abyss," Glick said.

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'The Supreme Court has become a threat to democracy' - Arutz Sheva

February 12, 2017 Former U.S. Rep. Patrick Kennedy says he thinks what President Donald Trump has done so far in office will "hopefully spark a reexamination of who we are as a people."

The member of one of the nation's most famous Democratic families told The Associated Press in an interview he sees threats to the constitutional form of government, and said his father, the late U.S. Sen. Edward Kennedy, of Massachusetts, believed that Americans should never take democracy for granted.

"He lost his brothers serving this country, whether in World War II or in elective office, and just knew that this country needed to be the beacon that everyone looked at it around the world," Kennedy told the AP. "He'd be so distressed right now to see people cynically tear apart what so many people have laid down their lives to build."

The former eight-term congressman from Rhode Island left office in 2011 and has stayed in the public sphere as an activist for better care for mental health and addiction, with endeavors such as The Kennedy Forum. He now lives in New Jersey with his wife and children. Kennedy's cousin, Chris Kennedy, son of the late U.S. Sen. Robert Kennedy, announced last week he is running for governor of Illinois as a Democrat.

Patrick Kennedy said he saw in Trump's victory a signal that the political class wasn't representing many Americans, and said many of the regions that voted for Trump are struggling with high rates of suicide and overdoses. Democrats can appeal to those voters by talking about topics such as economic justice and building stronger communities, he said.

"I don't think we need to demonize Donald Trump to do that. I think we can win by talking about a vision of our country being stronger," he said. "It's not as if the Democratic Party can't be the party of those that voted for Donald Trump."

Part of that is highlighting the great things about the American system, such as its strong constitutional law, he said.

"It's not an authoritarian type approach. It is a democratic approach," he said. "We're not an authoritarian country."

Harkening back to Trump's campaign slogan, "Make America Great Again," Kennedy said the focus should be on the nation's institutions.

"I think there's something really powerful that can come out from all of this. I think there's a hunger in America for renewal of our faith in this country," he said. "I think this very turbulent time may allow us to look back and see what really is great about this country."

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Kennedy says Trump is a sign democracy shouldn't be taken for granted - Christian Science Monitor

Common Dreams

RESIST: 80000 March in Raleigh for Voting Rights, Democracy & #MoralResistance Common Dreams RESIST: 80,000 March in Raleigh for Voting Rights, Democracy & #MoralResistance. 'A loud majority is outraged and the whole world is in turmoil asking what can we do. Well, we know we've got a hard fight ahead, but we know how to win'. by. Common ... and more »

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RESIST: 80000 March in Raleigh for Voting Rights, Democracy & #MoralResistance - Common Dreams