David K. Rees

A proposal to save democracy in Israel

As promised during the election, Israel’s right-wing government has submitted proposed legislation to reduce the powers of the courts to invalidate legislation passed by the Knesset (the Israeli parliament). The most draconian part of the proposed legislation is that it would give the Knesset the right to override decisions of  Israel’s Supreme Court.

Most of the democratic world considers an independent judiciary to be fundamental to democracy. Even great Britain, which also has a parliament, has a long tradition of having an independent judiciary. Last week, when the American Secretary of State Antony Blinken visited Israel, he warned that the basis of the United States’ support for Israel was that the two countries shared values. Among the most important of those values  is democracy.

Within Israel there has been enormous pressure on the government to change its stand. Three weeks ago, there was a rally in Tel Aviv which drew over 110,000 people to protest the proposed legislation. Smaller protests were held around the country, including Jerusalem. For a country as small as Israel, 110,000 people is a staggeringly-high number. Based on a comparison of the populations of the two countries, that would be the equivalent of roughly 4,000,000 Americans protesting. Members of the Knesset, almost all of whom want to be re-elected, notice numbers like that. Most of the Israel press also opposes the proposed legislation. Many members of the new, right-wing Israel government dismiss the protests as coming from “leftists.”

This week, more pressure was put on the Israel government. A huge American financial institution,  J.P. Morgan Stanley Chase, has warned that the new proposal would cost Israel significant foreign investment. Huge American financial institutions can hardly be called “leftist.” Moreover, the Morgan Stanly position has been made before by Israel’s financial sector.

These objections will matter to Netanyahu. While I could NOT support  Netanyahu in the last election because I thought that had sold his soul to the racist, religious, right wing, the man does have some laudable upsides. He is extremely smart. He is a magically-astute politician. He is very-well educated, having a masters degree from the Massachusetts Institute of Technology (MIT) and also studied political science at Harvard. He is sort of a Ronald Reagan/George Shultz believer in free markets. Opposition to the proposal from the financial sector will NOT go unnoticed by him.

A number of Israeli politicians, including President Herzog, have called for a compromise. Netanyahu seems to have heard that plea. Last week he, who has told the Americans that the proposal will not get through the Knesset without modifications, asked for proposals to modify the proposed legislation. I have such a proposal.

The proposed legislation is set to become one of Israel’s Basic Laws. Originally, the Basic Laws were intended to become a written constitution, but that has never happened; Basic Laws can be modified by the Knesset. Up to now, the Israel Supreme Court has treated them like a constitution and has invalidated government action on the basis that it violated Basic Laws. Because my proposal would only be a modification to the proposed legislation, it, too, would become part of the Basic Law.

My  proposal includes a Bill of Rights based on the American Constitution, modified to eliminate issues which would not be relevant for Israel  or because  this bill rights is being drafted in the 21st century.

My proposal:

1.  The First Amendment to  the American Constitution should, in part, be adopted in Israel. Because Israel is a Jewish state, the part of the First Amendment which prohibits the government from the establishing a religion would have to be eliminated, but the rights of free speech, freedom to practice your religion, freedom of assembly, and freedom to petition the government would be included.

2. The second amendment to the United States constitution, which protects the right to bear arms and reflects the conditions of the 18th century, should be omitted entirely. The third amendment prohibition against housing soldiers could be omitted on the same grounds.

3. The fourth amendment’s prohibition against unreasonable search and seizures should be included, as should the Fifth Amendment’s right to due process and the right of people to assert the right to remain silent. The Fifth Amendment’s prohibition of the government  to seize property without just compensation should also be included.

4.The Sixth Amendment’s protection of certain criminal rights should be included, however the requirement  that criminal proceeding be commenced by an indictment by a grand jury should be eliminated. The  Eighth Amendment’s prohibition against cruel and unusual punishment should also be included here.

5. Amendments, seven, nine, and ten have no application to Israel, but the constitutional right to privacy which stems from the ninth amendment, should be included.

6. Certain of the amendments to the American Constitution which were established after the American Civil War should be adopted, including the 13th amendment’s prohibition of slavery, the 14th amendment’s right to the equal protection of the law, and the 15th amendment’s protection of the right to vote

7. The provisions of the 22nd amendment, which limits the American President from serving more than two terms in office, should be applied to the Prime Minister. This amendment should NOT be applied to Netanyahu, since an object of the proposal is to gain his support.

Most importantly, the courts’ ability to  invalidate legislation on the grounds that it violated one of the Basic Laws could NOT be over-ridden by the Knesset. No other Supreme Court decision could be over-ridden by the Knesset except upon a vote of two-thirds of the members of the Knesset.

My proposal would allow the right-wing to say that they had passed their bill to reform  the courts, while also protecting individual rights and the courts. After all, who can object to a Bill of Rights? Certainly not the ever-political Benjamin Netanyahu, who could claim credit for being a protector of democracy and having brought members of the Likud with him.

About the Author
Before making Aliyah from the United States, I spent over three decades as a lawyer in the United States. My practice involved handling many civil rights cases, including women's- rights cases, in State and Federal courts. I handled numerous constitutional cases for the ACLU and argued one civil rights case in the United States Supreme Court. I chaired the Colorado Supreme Court's Committee on the Rules of Criminal Procedure and served on the Colorado Supreme Court's Civil Rules and Rules of Evidence Committees. Since much of my practice involved the public interest, I became interested in environmental law and worked closely with environmental organizations, including the Environmental Defense Fund (EDF). I was on the Rocky Mountain Board of EDF. I received an award from the Nebraska Sierra Club as a result of winning a huge environmental case that was referred to me by EDF. I also developed significant knowledge of hazardous and radioactive waste disposal. I was involved in a number of law suits concerning waste disposal, including a highly-political one in the United States Supreme Court which involved the disposal of nuclear waste. As I child I was told by my mother, a German, Jewish refugee who fled Nazi Germany, that Israel was a place for her and her child. When I first visited Israel many years later, I understood what she meant. My feeling of belonging in Israel caused me to make Aliyah and Israel my home. Though I am retired now, I have continued my interest in activism and the world in which I find myself.