Gentlemen’s agreement seeks gentlemen

Many foreign friends (and not a few Israeli ones) still seem confused about Bibi versus the Judiciary.  

It’s actually simple: Israel has almost no formal governance system. It’s basically got a government and that’s it. Oh, and its also got a gentleman’s agreement, more about which later (sorry for the sexism, but “gentleperson’s” doesn’t really work — I tried that first).

The reason for our missing governance system is that our founding parents got distracted from thinking-through that sort of thing by the six invading Arab armies that were trying to genocide them at the time. (Well to be honest, staying ungenocided was only part of the reason. The other part is that the founders were Israelis and Israelis leave stuff till later).

Most problematically, what our founding parents neglected is the block in the DIY Democracy Kit where you’re supposed to write in your checks and balances. So there are no formal checks and balances in the Israeli system. None.

Now as Israelis are justifiably famous for, when they need something and they don’t have it they improvise. So, since a democracy needs checks and balances, and since Israel didn’t have any checks and balances, the Israelis improvised something up and that something is a uniquely independent and powerful judiciary – Independent enough and powerful enough to check and balance the government.

By all accounts this is an odd solution — apparently quite unique in the world. But you can’t argue with success and on any objective measure, Israel over the past 74 years has been one of the world’s most outrageously successful success stories.

And when you think about it, this odd solution is a brilliant solution for Israel’s unfortunately odd circumstances. What an embattled micro-country facing multiple existential threats on the outside, and a Guinness chapter’s worth of record breaking social and economic challenges on the inside needs is to be able to move quickly and decisively. And a powerful unipolar government unencumbered by slow-moving conventional checks and balances like truly separate legislative and executive branches or multiple parliamentary chambers can do just that. And to prevent the unchecked and unbalanced powerful unipolar government from inadvertently slipping into autocracy while its busy moving quickly and decisively? An equally powerful dance-partner, similarly unchecked and unbalanced, and so similarly able to move quickly and decisively.

So that brings us to today.  Today Israel is run by a powerful government on the one hand, balanced by a powerful judiciary on the other hand, and together the two hands have mostly kicked butt.  

To digress for a second – does this mean that the “deep-state” video with the scary music and the scarier pictures of various Baraks that your Bibist colleague keeps forwarding so you’ll FINALLY understand the horrifyingly undemocraticness of a dark cabal of unelected Ashkenazi judges canceling the decisions of the hardworking elected government is wrong? Not at all. Both your colleague and the propaganda machine relentlessly manipulating the poor soul are 100% correct – our system of judicial checks and balances is undemocratic as hell.

The only consolation is … so are the checks and balances of every other democratic country on the planet.  Give it a 5 seconds think and you realize they have to be.  Constraining the power of a democratically elected government is essential, but, by definition, it’s also completely undemocratic.   

Want an example? The US (who’s less powerful court Bibi and the Bibists love to point to) is governed by an unelected constitution.  Americans go out in the November sleet to vote for a President who can’t do half the things they want her/him to because a bunch of guys with wooden teeth who’ve been dead 200 years said so.  I mean at least our judiciary is alive and even sort of accountable, if indirectly, to the people. 

OK, so so far so good. Israel has evolved a weird system but it works and works well.  The problem is that none of this is written in stone, or even on paper. 

On paper, Israel still has no formal checks and balances. That thing with the uniquely powerful independent judiciary is the gentlemen’s agreement I mentioned at the beginning.  And gentlemen’s agreements are only useful when there’s gentlemen. 

Now to belabor the point, ANY Israeli government over the last 74 years could have said screw this, we don’t want to be checked and balanced, and could have simply taken over the judiciary and given themselves a free hand to then do whatever they want, including cancelling any democratic rights that annoyed them. The law, as written, allows this. 

But no Israeli government, left, right, or middle, has ever had the level of indecency that it would have taken to abuse that loophole. 

Until this one.