Judicial Reform To Protect Our Rights

When you read between the lines of this article, this may be one of the most poignant articles about why the judicial reforms are needed.

The headline is correct. The judicial overhaul will leave the right to vote unprotected. However, the operative word there is “leave”. As in, it is unprotected right now, and will remain so. That’s because there is no law that gives a right to vote, at all. As I’ve always said, Israel has no concept of rights. A few laws speak about rights, but even those have outs – either a minister can override the “right”, as in the case of the “Right of Return”, or the Knesset can pass a law that takes that right away, as in the Basic Law: Human Dignity and Liberty. In fact, that’s what happened with the Disengagement. The Court ruled that the Disengagement violated the right to property of the Jewish inhabitants of Gaza, enumerated in that Basic Law, but since it fit the exception in the Basic Law, it was all right.

Of course, the author assumes the Court will “protect” the “right to vote”. How? Because the Supreme Court currently has no check on its power. If the Knesset were to pass a law saying a certain group could not vote, the court could decide – not based on any competing law – that it agreed or disagreed. If it disagreed, those people could vote. The author believes that those he feels need “protection” would be “protected” in this manner – for instance, Arabs.

However, the power of the Court goes far beyond that. There need not be a Knesset law disenfranchising anyone. The Court could rule to enfranchise, or disenfranchise anyone, no Knesset involvement needed. The Court could decide that the Arabs living in Jerusalem should be allowed to vote for Knesset, despite not having citizenship, and despite actively rejecting citizenship that was offered in the aftermath of 1967. The court could give the vote to illegal immigrants. Conversely, the Court could disenfranchise all Israeli citizens living in Judea and Samaria, the so-called West Bank. After all, the normal system in Israel requires that you be present in the country and vote in person, since we in Judea and Samaria are under military governance (a topic for another time), we could be viewed as “not in the country”.

Those arguing against the reforms constantly say the same thing, if we just listen – “We have no laws concerning a right to X, so the only way we may have a right to X is to give the Supreme Court carte-blanche to create a right to X.” At the same time, I’ve heard more than one ostensible Israeli law professor opposed to the reforms say that democracy has nothing to do with majority rule. The only way to reconcile these views with the actual word “democracy” is to say that Israelis often have a hard time with English.

Perhaps we would all have accepted our judicial overlords if they were fair, impartial, non-political and consistent. After all, if they were doing what the public would have wanted anyway, why bother having to vote? Obviously this is not the case. To point out just one example, and one mentioned in the article, what about this “right to be elected”? First of all, I’ve never heard of such a right. In the US, you have to be 35 and born in the United States to be elected president. Does that violate someone’s rights? Be that as it may, in Israel there is a Basic Law that says you can’t be elected to the Knesset if you do one of the following:

negation of the existence of the State of Israel as the state of the Jewish people;
negation of the democratic character of the State
incitement to racism

This law has only ever been used against Jews. Several times the Knesset committee that is supposed to apply this law has recommended to ban members of the Arab parties (who publicly decry the idea of a Jewish State, just for starters), but in 2019, the Court reversed the committee and instead banned Jewish members of the Otzma Yehudit party, whom the committee had approved, including one who had previously served in the Knesset. Whether they should have banned anyone is immaterial. The idea that they’re protecting a “right to be elected” or are apolitical is laughable in the extreme.

To be fair, we’re not alone. Many countries are “democracies” in a similar way. After all, Syria has elections, it just happens to be that 97% vote for Assad. I once heard a representative of China say, “We’re democratic, we just don’t have elections.” Not to mention North Korea, which has “Democratic” right there in its name – The Democratic People’s Republic of Korea. But is this the club we wish to join?

Those opposed to the reforms rightly point out that there is a fear of a “tyranny of the majority” – a fear, I would argue, that is more tangible for the right than for the left. Even Bibi knows he’ll be out of power one day; he literally just was. However every country that we would call “democratic” handles that fear in the same way, and it is not by creating a judicial junta to second-guess the voters. Instead, they vote, either directly or through a parliament, for limits on all branches of governments, including the courts, and enumerate the agreed upon rights of the citizens that are sacrosanct in that society and cannot be taken away just because someone has an idea that is for the “public good”. The Court is then empowered – as these reforms do – to enforce those limits and enumerated rights.

These reforms are just the beginning of that process of enumerating rights. I don’t know if anyone has come out and said this out loud, but once the judiciary has limits, all of the decisions they would have just decreed from on high up until now will have to be voted on. That is because the reforms will force the hand of the Knesset as much as the Court. The first time someone challenges anything and the Court says, “We can’t rule because there is no law,” the Knesset will have to pass a law. The process won’t be pretty; rights give benefits to my enemies as well as my friends. But this is how things work in an actual democracy.