Howard F Jaeckel

How Would Ben Gurion Have Advised Today’s Protestors?

Last evening, I opened the Times of Israel on my computer because I wanted to read the details of Maccabi Haifa’s dramatic extra-time win on Wednesday to advance in its quest again to qualify for UEFA’s Champions League. But on reading the main news headline – “High Court calls PM recusal law ‘clearly personal,’ indicates it may intervene” – my thoughts of soccer quickly vanished.

The story described a hearing before a Supreme Court panel consisting of the three most senior justices in which certain of their remarks suggested they might consider invalidating a recently-passed law prohibiting the Court from ordering Benjamin Netanyahu to recuse himself from any involvement in matters concerning judicial reform. The parties bringing the petition in question argue that Netanyahu’s involvement in such matters violates a conflict-of-interest agreement he signed in 2020, under the auspices of the High Court, allowing him to continue serving as prime minister despite being indicted on corruption charges.

What? Unelected judges are going to decide whether the country’s prime minister, chosen in accordance with the voters’ mandate, may continue in office if he insists on participating in what is unquestionably the most important political issue in Israel today? Do those who fear the “death of democracy” based on a limitation of the Supreme Court’s ability to veto Knesset-passed measures that violate no existing law, but which the Court thinks  “unreasonable,” not see the tension with democracy here?

In the background, of course, is the Court’s announcement that challenges to the just-enacted reasonableness law will be heard by an unprecedented panel of all 15 Justices in September.

One hopes and even expects that the Court will decline to pronounce either of the above laws invalid, realizing, as the Justices must, that such a ruling would plunge Israel into a true governmental crisis. Even assuming this result, however, the uncertainty created by the Court’s decision to entertain these petitions, rather than summarily dismissing them, warrants further discussion.

In previous posts, I’ve expressed sympathy with the fears of protesters that the current right-wing coalition might run roughshod over fundamental rights. But at the same time, I’ve argued that those rights can and should be protected by electoral reforms to ensure that the Knesset’s membership more accurately reflects the views of a majority of voters, rather than relying on an all-powerful and undemocratic Supreme Court to veto any legislation passed by the democratically-elected Knesset that it doesn’t like.

How would Israel’s founding father and dominant political figure, David Ben Gurion, have viewed the current situation? The rather surprising answer may be found in a  speech he gave to the members of the Knesset’s committee on “Constitution, Law, and Justice” on July 13, 1949, a translation of which appeared in the online magazine Mosaic about two years ago.

Israel’s Declaration of Independence, adopted on May 15, 1948, provided that a constitution would be adopted by October of that year. This did not happen, a fact generally attributed to the situation Israel then faced – an invasion by five Arab armies intent on its destruction and the need to absorb a massive inflow of immigrants. The adoption of  a constitution acceptable to all elements of the country’s variegated population was not a priority.

While all of this is undoubtedly accurate, there was another significant factor – Ben Gurion did not want a constitution.

At the time of Ben Gurion’s speech to the Knesset’s committee on “Constitution, Law, and Justice” in July 1949, the War of Independence was over. Thus, any fear that an attempt to frame a constitution would be a distraction for a country under attack was not longer applicable. Ben Gurion opposed the adoption of a constitution not on practical grounds, but because he thought it was a bad idea.

After all, the United Kingdom had no constitution and Israel already had functioning instrumentalities of government, including a legislature and court system, which had been developed without benefit of a constitution. Further, Ben Gurion’s study of other political systems convinced him that attempts at constitutional government were more often harmful then helpful. As an example, he cited the Constitution of the United States.

Recognizing that America’s federal system necessitated a division of powers between state and federal governments, Ben Gurion nevertheless said

It’s especially the case that there’s no logical reason that we should do what was done in America: delegate to the court the authority to invalidate laws if these laws oppose the constitution.  . . .  This would be a reactionary step, simply an attempt to hinder the development and legal progress of the state.

This is how it was in America. When America wanted to pass a law on the protection of children, stating that it’s not allowed to put young children in to labor, or for not many hours, the Supreme Court ruled that this was against the constitution. The Supreme Court of the United States threw out the income tax on the grounds that this was confiscation of property, and confiscation of property is forbidden according to the constitution. The American constitution has turned into a conservative, reactionary institution that stands against the will of the people.

With changes in the Court’s personnel, examples of judicial overreach have alternated between the right and the left.  But since the beginning of the Twentieth Century, the same kind of issues now roiling Israel in the judicial reform debate have also been the subject of heated dispute in the United States.

The bottom line is that Ben Gurion was a convinced majoritarian. As he said in his speech to the Knesset committee:

[I]n a country such as ours, imagine for yourselves that the nation wants something, and seven people designated with the rank of judge cancel something that the nation wants! . . . This, in our country, would lead to revolution. For the people will say: we will do what we want. I think giving this kind of authority to judges is a reactionary thing. With us this can’t exist. . . . The Knesset . . .  will pass a law which will rely on the will of the majority—and the Supreme Court will throw it out because in its opinion it doesn’t fit some line in the constitution! Only the nation determines the constitution. A constitution is what the nation wants after free debate and judgment and after a vote

Thus, Ben Gurion opined that it was not possible “to delegate authority to the court to decide whether the laws are kosher or not.”  There can be little doubt that today he would have been with the judicial reformers.

But Ben Gurion’s views on another subject also require mention. As we have discussed, the fear of today’s protesters that they will be subject to the tyranny of a right-wing government if the Supreme Court’s powers are narrowed stem from Israel’s proportional representation electoral system which, by defusing Knesset representation among many factions, including some with minimal popular support, requires the formation of governing coalitions that may give minority parties undue leverage to impose their special interests on the population at large.

Ben Gurion initially favored the proportional representation system, but came to regard it as a significant mistake, saying

With the strange electoral system of Israel the entire political system is not only undemocratic from the bottom up, but it endangers the development of the state as well as of a political consensus, and it undermines the state’s position both in its domestic life and in its foreign policy.’

He also wrote that “I always considered the British electoral system as the best, just as ours here in Israel is the worst.”

So, Ben Gurion’s advice to today’s protestors? Focus on electoral reform, not maintaining judicial powers fundamentally at odds with democracy.

About the Author
Howard F Jaeckel is a retired American lawyer who worked for a major broadcasting company for many years. He has a longstanding interest in constitutional law and has followed the issue of judicial reform in Israel closely.
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