Response to Prof. Avi Bell’s ‘Death Knell’
I am sharing this now, 28 intense days later, and just three days after Prime Minister Netanyahu paused the “judicial reform” legislation, enabling a national dialogue among negotiating teams of Israel’s governing Coalition and of the Opposition parties, now underway at the House of President Isaac Herzog in Jerusalem. Perhaps — perhaps — this crisis has yielded an opportunity — for Israel’s constitutional moment.
But I am sharing this now, 28 days later, because it captures some of the key aspects of the intense public argument that the proposed legislation triggered, and therefore believe it may be of intellectually clarifying value and of snapshot historical interest.
On March 2, 2023, as Religious Zionism’s MK Simcha Rotman, a member of the Netanyahu coalition government, and Chair of the Law and Constitution Committee, was ramming through his committee Likud Justice Minister Yariv Levin’s “judicial reform”, which the Opposition and protesters term “regime change” (“mahapacha mishtarit”), a Diaspora friend sent me the transcript of a YouTube video entitled, “Are the Proposed Judicial Reforms a Death Knell to Israeli Democracy?”. This was my friend’s introduction and succinct summary:
“I watched this EMET webinar live yesterday. Professor Avi Bell has been working on Israeli legal/constitutional issues for decades, and is extremely well qualified to speak on this issue.
As he explains carefully, the changes proposed are reasonable, are democratically appropriate, and are needed to rein in the overreach of the Israeli Supreme Court which over the past 30 years (since Aharon Barak took over as chief justice) has arrogated to itself almost unlimited powers to intervene in Israeli politics and to override the democratically elected Knesset, and are changes that have been proposed for many years. This isn’t being driven by Bibi Netanyahu’s court case. And it’s been discussed and proposed many times but always got bogged down in committee until there was a change in government. So what’s being proposed is quite reasonable.
Definitely worth watching. This isn’t a right-wing ideologue, but someone who is very knowledgeable and sensible about this issue.”
I carefully read through the transcript of Prof. Avi Bell’s presentation. Here was my response:
Thanks for sharing the transcript. However, I must strongly disagree with you. While Avi Bell may indeed have been working on Israeli constitutional issues for decades, contra your claim, he definitely IS a right-wing ideologue, part of the Kohelet Forum which of course completely backs the judicial reform, and in some ways is its authorial source.
It’s not only that Avi Bell’s “analysis” is completely driven by his political positions; it’s that he misleads, redirects, employs straw man arguments, or simply dismisses the criticism and warnings by everybody – from the Netanyahu-appointed governor of the Bank of Israel, hundreds of economists, high tech leaders, heads of the Israeli banks, hundreds of leading members of the IDF, and hundreds of thousands of Israeli patriots (I include myself) who love this country and are absolutely horrified by this constitutional revolution that is being rammed through the Knesset without debate, careful consideration, consensus or compromise.
Avi Bell misleads, he colours the facts. Just one example, as to Arab voter turnout in the last election, he says: “Actually, the turnout figures were not that low, it turned out.” No, at 53.2% it was the third lowest EVER.
Another lie, (there is just no other way to describe it), is in response to a question: “isn’t it unreasonable that merely 61 [out of 120 Knesset members] can overrule the supreme court?”, he says “61 is a hard number to reach”!! That is ridiculous; every single government in Israel since its founding MUST have at least 61 Knesset members voting in their favor to create a government. 61 is the LOWEST possible number that ANY governing coalition can have.
Then, when an excellent question is asked – a question that really goes to the heart of the matter, namely, “Say I am a minority, for example, an Arab Israeli, and an extreme right-wing government passes a law that undermines one of my basic rights, and the Knesset votes it into law [and if necessary, overrules any Supreme Court objection] by a simple majority of 61 votes. What recourse do I have?” Indeed, as Alan Dershowitz points out, the protection of these basic minority rights against the tyranny of the majority is EXACTLY what a Supreme Court is supposed to do. What is Avi Bell‘s response? “The recourse that the minorities have is elections.”!! I nearly fell off my chair at the ridiculousness of this answer. In democratic elections, the majority rules, the majority forms the government, and now, after the proposed “reform”, with no judiciary independent of the government, the minority has absolutely NO recourse against the tyranny of the majority.
If Avi Bell’s argument is that “don’t worry, Israel will continue to be a democracy, because the majority rules”, then in that narrow sense, he’s right. But democracy is not just majority rules, but also the protection of the minority, the protection of the citizen against the power of the government, the protection of fundamental rights including free speech, free press, an independent judiciary. Beyond periodic elections and majority rule – even Iran and Turkey have those – the important question in a democracy is: what control is there AGAINST the tyranny of the majority, AGAINST the power of the government? What defense does a citizen have against the majority passing a law that violates one of his basic rights? If the judges (of every single court, from the Supreme Court on down) are appointed by the Knesset majority, (which in Israel means: the government); if the legal advisers are appointees that serve at the pleasure of the minister they advise; if the government, by a vote of 61, can overrule the Supreme Court decision they don’t like, then the answer is: after the so-called judicial reform is implemented, NOTHING stands in the way of the government.
Another tactic Avi Bell uses in his political argumentation is when a question is asked about Israel, he refers to the US system. [“After all, judges to the US Supreme Court are political appointments… Is the US not a democracy?”] The US system is TOTALLY and FUNDAMENTALLY different in its constitutional make-up from Israel. The US has a written constitution, which clearly spells out checks and balances; a bill of rights, which clearly spells out fundamental rights; it has two houses of Congress, Congress and the Senate; and a powerful, separately elected executive, the President; it has 50 states, each of which has their own separate legislatures, and areas where they have jurisdiction. Israel has none of these. No Constitution, no bill of rights, no second house of sober second thought, no Executive independent of his Knesset majority, no regional government; it only has a Knesset, where if you get 61 seats, you form the government; and therefore the Executive and the Knesset majority don’t act as “checks and balances” on each other, but are one and the same. The ONLY restraining force in Israel’s system is the independent supreme court.
Finally, Avi Bell uses “strawman argument” in which he takes extreme and ridiculous arguments (that I’ve never heard, but may well have been made by somebody or other, once), such as “the reform is going to kill cancer patients” in order to dismiss the genuine concern, expressed multiple times, by thousands, including many informed experts, that this reform, if implemented as is, will be the end of Israel as a liberal democratic state. Israel will become an illiberal autocracy, in which it has some of the appearances of democracy, namely, a parliamentary talking shop, and periodic elections, but it will not have an independent judiciary. And Justice Minister Levin, who is leading the charge, has already explained that after he finishes taking care of the independent judiciary, (and made it subject to the government) he intends to move on to “reforming” the media and the academy. This is exactly the playbook that happened in Hungary and Poland.
Avi Bell then tries to explain that the tearing apart of Israeli society – that is happening as I write – is just hyperbole and drama. Unfortunately, that is not the case. While Iran is moving towards weapons grade uranium, while a third intifada is on our doorstep, and there are a host of pressing social, economic, and geopolitical issues to be addressed, the government’s single-minded focus is rushing through this legislation, without compromise, without consensus, ignoring the urgent warnings and pleadings from all sectors within, and from without Israel, from President Herzog (voted in by 81 Knesset members) on down, and creating a terrible fissure in Israeli society. The most dangerous aspect of this is that it undermines Israeli security in two ways: one, through the undermining of an Israeli consensus society, and two, by alienating Israel’s critical allies, including, especially the United States, which is drawn to Israel by shared liberal democratic values, and whose help we need on existential issues like Iran and defense in international forums.
Avi Bell thinks there is no connection between Netanyahu’s legal troubles and the judicial reform. While it is true that Levin and the Kohelet Forum have been planning for years to make this “reform”, Netanyahu was the prime minister for much of that time, and he never permitted it to proceed until now. Indeed, there are many times when Netanyahu made a full-throated defense and praise of Israeli’s independent judiciary, as can be heard in these two YouTube video speeches from 2012 https://www.youtube.com/watch?v=7PLAEURqP4E and 2018
But whatever his motives, it is a bit of mystery how Netanyahu has gone from a masterful political leader, moderate and measured in his policy, aware of what was happening, who had the best interests of Israel at the forefront, and fully in control, to what he is today: weak, out of touch, and, having eliminated almost any opposition from within his Likud party, is being steamrolled by his younger, single-minded coalition partners – ultra-Orthodox, who hate the Court and want to ensure they and their sons never have to serve in the army, and who only care for their own community’s needs; messianic Jewish supremacists, who dream of a Halachic state (after the pogrom by Jewish settlers in Huwara, Religious Zionism leader and Finance Minister and minister in the Defense Ministry Bezalel Smotrich declared that “The village of Hawara needs to be wiped out. I think that the State of Israel needs to do that – not, God forbid, private individuals.” A statement that the US called “disgusting”), who see the Supreme Court as a liberal bastion that prevents them from fulfilling their Greater Land of Israel goals; and a thuggish coterie of Likud MKs (most reasonable Likudnik leadership has left) who openly pander to and inflame ethnic and class resentment.
What of the widespread opposition expressed in demonstrations, and in public declarations and warnings by leading forces in the country’s economic, high-tech, academic, banking and military? Those who support the Netanyahu coalition judicial reform claim that this is simply the response of Israel’s privileged Ashkenazi secular educated and affluent elites, who can’t accept the results of the last election, and the electoral rise of right-wing, nationalist and religious parties who won a majority of Knesset seats. Leaving aside the concerning populist rhetoric, there is some validity to this charge, if it means that Israel’s educated and affluent elites (not all Ashkenazi, and not all secular, and including many who voted Likud) want Israel to remain a liberal democracy.
While Avi Bell’s analysis of the ideological preferences of Israel’s Supreme Court are valid, his characterization of the proposed regime change as mere “reform”, his misleading characterization of the “reform’s” opposition, and his soft-pedaling of the “reform’s” consequences, are a disservice to those who care about Israel’s future as a Jewish and democratic state, in the spirit of the Declaration of Independence, an Israel that its friends and supporters abroad can defend in the liberal democratic West.