Noru Tsalic

Unpacking the Israeli judicial reform

Fair disclosure

In a recent article, I expressed appreciation for Benjamin Netanyahu’s past achievements as Prime Minister of the State of Israel – even if not support for his present policies.  I also stated:

“As for the ‘Religious Zionism’ extremists, I have nothing but contempt for them: their way isn’t my way and their Zionism is a very far cry from mine.”

I reiterate this here to give all readers a fair chance of correctly interpreting my position.  It’s a forlorn hope, I know: despite candidly revealing my political credo, I’ve recently been called ‘a right winger’ – after being accused in the past of being ‘woke’…  Well, if you want to stick a label on my forehead, then please yourself.  As long as you don’t also try to tape my mouth shut…

Of hawks and doves

As I’m sure you heard ad nauseam by now, Israel has a new government, one that the BBC (and others) called ‘Israel’s most right wing ever’.  It’s worth explaining that the terms ‘left wing’ and ‘right wing’ are often misused in the Israeli context (even when they are not employed as mere insults or accusations).  Israelis rarely argue about abortion rights; or even LGBT rights.  We seldom debate the wisdom of nationalising the railways.  Rather, Israeli politics is shaped by the existential conflict the country is trapped in.

Thus, the political spectrum runs from ‘hawks’ (whom not just the BBC, but most Israelis, too, loosely refer to as ‘right wing’) to ‘doves’ (commonly referred to as ‘left wing’).  The ‘hawks’ place security issues at the top of their concerns; they may or may not be ‘right wing’ in the true sense of the term – i.e. from a social, economic and cultural point of view.  The ‘doves’ are those who prioritise achieving peace – whether they also identify with a ‘working class agenda’ or not.  And it’s not like the ‘hawks’ don’t want peace, or the ‘doves’ don’t want security: like Jabotinsky (whose writings most never read), the former believe that peace can only be the product of security – it would come when the enemy loses all hope of ever defeating us; while the latter see security as possible only as a result of peace achieved through negotiations and compromise.  Thus, as usual, the argument is about the route to be taken – rather than the final destination.  Needless to say, most Israelis position themselves somewhere in the middle, their ratio of hawkishness versus dovishness influenced by events and, in turn, largely determining their electoral choices.

But the Israeli political spectrum is two-dimensional, with a second axis describing the degree of religious observance and ranging from the very observant (Jews and Muslims) to complete atheists – with most Israelis somewhere in-between.

Israel’s political map should not be reduced to the simplistic left-wing vs. right-wing dichotomy. {own picture}

The Bibi syndrome

All that, however, describes the past and most likely the future – rather than the present: in the last couple of years or so, that multi-dimensional map of Israeli politics coalesced into just two factions: the anti- and the pro-Netanyahu camps.  A virtual brick wall was built between the two, primarily by the ‘anti’ parties’ vow not to form a coalition with a Netanyahu-led Likud.  Ostensibly at least, this is because he is currently being tried on corruption charges; though the real reasons may spill beyond moral rectitude: Netanyahu (who has been Prime Minister longer than Tony Blair!) has accumulated an impressive list of political and personal enemies; some (e.g. Avigdor Lieberman, Naftali Bennet or Gideon Saar) clearly resent the man more than the politician – and not just because of the alleged corruption.

There’s a new dichotomy operating here. {own picture}

The combination of Netanyahu’s stubborn desire to stay in power and the opposition’s uncompromising Bibi-boycott is what saddled the country with multiple elections in two years and – ultimately – with the likes of Smotrich and Ben Gvir as highfalutin ministers and irreplaceable components in the only possible coalition.

Netanyahu is certainly guilty of wilfully closing his nostrils to the stench of racism and general extremism emanating from ‘Religious Zionism’.  But there’s enough guilt to go around: I think the leaders of opposition parties (especially Benny Gantz and Yair Lapid) were wrong to place their political considerations and/or moral purity (take your pick) above the interests of the country; they should have accepted the judgment of the electorate, while awaiting the verdict of the court.  After all, when higher interests of the state demanded it, even the famous-for-his-integrity Yitzhak Rabin appointed as minister a man under investigation for corruption.

The end of the world

But the above is just historical introduction.  Israel has a government – one legally constituted, legally governing and therefore (whether one likes it or not) legitimate.  And my topic today is the judicial reform promoted by that government; also known (justifiably) as the ‘judicial overhaul’, but also called ‘regime change’, ‘coup’, and ‘the end of Israeli democracy’.  I have not heard it referred to as ‘the end of the world’ yet – but I expect to any time now.

The current proposal was initially presented by Justice Minister Yariv Levin (from the Likud party) and – as I’m sure you all know – was immediately met with a huge wave of criticism and acerbic opposition by eeeeeverybody and her dog, too: from former generals to company CEOs, from Jeremy Corbyn to US rabbis and from Jewish Labour Movement to Goldman Sachs.

Given the rather selective treatment of both traditional and social media, a few things may be less well-known.  For instance, that Yariv Levin is himself a lawyer – one respected enough to have been elected Deputy Chairman of Israel’s Bar Association.

You may have heard the accusation that the reform is only being pushed as part of a plot to stop Netanyahu’s trial and somehow exempt him from just punishment for his (as yet unproven) crimes.  Those pushing such conspiracy theories don’t usually bother to explain how this would work, given that the reform proposals in no way affect the trial; nor do they mention that Levin has been calling for such reforms for at least the past decade.  In fact, long before the corruption allegations against Netanyahu ever surfaced, there have been several attempts to reform the judiciary; some kicked into the long grass by… the Prime Minister himself.

2015: the then President, Prime Minister and Supreme Justices. Not everybody is smiling… {CC BY-SA 3.0, photo by Kobi Gideon / Spokesperson unit of the President of Israel}

But why ‘reform’ anything, in the first place?  What’s wrong with the judiciary?  Drowned in the concert of shouting is the simple fact (which nobody seriously disputes) that Israel’s Supreme Court is the most ‘activist’ in the free world.  That’s not to say that its rulings are wrong, but that its purview is incredibly broad: in the view of Israel’s Supreme Court, anything and everything can be debated and decided in court.

That’s not how other High Courts do things: The Supreme Court of the United Kingdom, for instance, recognises certain issues as ‘non-justiciable’ – generally meaning that they are political or ethical rather than legal and should therefore be resolved in the political arena and not in a court of law.  Recent rulings of the UK Supreme Court include the – by now famous – statement:

“judicial review is not, and should not be regarded as, politics by another means.”

Many would argue that “politics by another means” is exactly what the ‘hyper-activism’ of the Supreme Court of Israel boils down to.  Such concerns have been raised not just by ‘right-wing’ politicians; and not just by politicians in general, but by very respected legal experts.  Including Moshe Landau, former Israel Supreme Court President; Richard A. Posner, judge US Court of Appeals, Senior Lecturer University of Chicago Law School; Prof. Daniel Friedman, former Dean, Faculty of Law at the University of Tel Aviv; Prof. Yoav Dotan, former Dean, Faculty of Law at the Hebrew University, Jerusalem; and, famously, Prof. Ruth Gavison, Professor of Law at the Hebrew University of Jerusalem, recipient of the Israel Prize.  I say ‘famously’ because Prof. Gavison was not just an internationally-recognised and highly-respected expert in human rights, but one politically aligned with the ‘ultra-dovish’ Meretz party.

The Deri syndrome

One of the most recent decisions of the Supreme Court was ordering Prime Minister Netanyahu to sack Interior Minister Aryeh Deri (leader of the Shas party), as a result of the latter’s criminal record.  There’s quite a bit of ‘Zionist irony’ in this, given that the whole ‘activism’ issue may be said to have started with a younger Deri – some three decades ago!  Here’s a slightly dramatized version of those events:

It’s June 1992.  Labour leader Yitzhak Rabin just won the elections, gaining no less than 44 mandates in the 120-seat Israeli parliament (the Knesset).  To cobble together the required parliamentary majority (at least 61), by July he establishes a coalition with the very ‘dovish’ Meretz party and with the Haredi (‘Godfearing’ or very religious) Shas.  In terms of Israeli political arithmetic, the calculation is 44 + 12 + 6, giving Rabin a thin 62-seat majority.  As part of the quid-pro-quo, Rabin appoints Shas leader Aryeh Deri as… Interior Minister (the man really likes that job – what can I tell you?!)

Aryeh Deri in 2017, with then Leader of the Opposition (and current President of Israel) Yitzhak Herzog.
{Adi Cohen Zedek (עדי כהן צדק), CC BY-SA 3.0 <>, via Wikimedia Commons}


But some things never change: Deri was at the time under investigation on corruption allegations.  One hot day in August 1993, Attorney General Yosef Harish knocks at Rabin’s door: ‘Yitzhak,’ he addresses him in typical Israeli fashion, ‘you’ve gotta fire Deri’.  ‘Really?’ says Rabin, ‘is this the law?’  ‘Well,’ replies Harish, ‘the law says that you cannot have a minister who’s been indicted for such offences.’  ‘Ok,’ says Rabin, breathing with relief.  ‘But he hasn’t been indicted yet, he’s just under investigation.  Once he is indicted, I’ll fire him, no worries.’  ‘No,’ insists Harish.  ‘We’ve been informed that he will certainly be indicted.  ‘So at this point, I think you need to fire him immediately. For him to remain a minister would be contrary to the principles of law and government’.  ‘Listen,’ pleads Rabin, ‘if I fire him, I’ll lose my parliamentary majority.  The government will fall.  And let me tell you something,’ (he lowers his voice) ‘we are involved with these secret negotiations with the PLO in Oslo…  It’s a great opportunity.  I really-really don’t want the government to fall now…’

The late Yitzhak Rabin
{By Yaakov Saar –, CC BY-SA 3.0,}

It didn’t help Rabin: somebody complained to the Supreme Court.  And a panel of 5 judges ruled that he must sack Deri right away.  The grounds for that decision make interesting reading: the Court agreed that, going by the letter of the law, Deri could stay on until indicted.  But, given that the indictment was a certainty, rather than an eventuality, the judges ruled that it would have been ‘extremely unreasonable’ for Rabin to wait until it actually happened.

Rabin did not attempt to use the Oslo peace process to get the Court to give his government a break.  But, even if he tried, it’s very unlikely that the ruling would have been different.  Judges (especially Supreme Judges) inhabit an ivory tower unpolluted by accountability.  Not theirs is the responsibility to make peace or bring people a better life.

In September, Deri resigned his ministerial position – taking Shas out of the coalition.  Also in September, the Oslo Accords were signed.  As negotiations with the PLO were taking place on the practical implementation and further expansion of the Accords, Rabin’s became a minority government, relying for its survival on the outside backing of anti-Zionist, PLO-supporting Arab parties.  To quote Haviv Rettig Gur, arguably Israel’s best political journalist:

“It was a moment that would cast a pall over the entire peace process, at least in right-wing memory. The highly symbolic Jewish majority for Oslo was lost with Shas’s departure.”

But let’s come back to Attorney General Yosef Harish and examine his role in this kerfuffle.  In the UK, Attorney General is a quasi-ministerial post: like any minister, s/he is appointed by the Prime Minister, can be sacked at any time by the Prime Minister – in short s/he serves at the pleasure of the Prime Minister.  Not so in Israel, where Attorney Generals are utterly independent; not only don’t they have to do what the Prime Minister tells them to do – the opposite is generally the case.  In 1993, Rabin told Harish that he had resolved to keep Deri as minister until he was actually indicted.  He asked the Attorney General to defend that position in court.  ‘No way!’ said Harish.  ‘I think you need to fire Deri immediately – and that’s exactly what I’ll tell the court.’  ‘Fine!’ said a slightly annoyed Rabin.  ‘I’ll get another lawyer to defend my case.’  But the Supreme Court ruled that Rabin was not entitled to another lawyer: the Government of Israel could only be represented by the Attorney General of Israel.  One of the judges that produced this ruling (Aharon Barak – a famously ‘militant’ Justice) argued that the question was not why wasn’t the government’s position defended in Court; rather, he explained, the better question was how dare the government adopt a position contrary to the opinion of the Attorney General?  (That ruling is by now a well-established precedent: the views of the Prime Minister or those of Israeli ministers are not defended in court unless the Attorney General agrees with those positions.)

The other revolution

The 1993 ruling was one of the first shots of what Aharon Barak himself called a “constitutional revolution”.  Soon elevated to the position of Supreme Court President, Aharon Barak declared:

“There are no areas in life which are outside of law.”

And, on the other hand:

“Where there is no judge, there is no law.

What grew out of the above philosophy was a new, ultra-interventionist judicial doctrine.  I wouldn’t call it ‘a coup’; but it was definitely a novel constitutional regime – one never tried before in Israel and never applied since – except in Israel.

Unlike politicians, judges are not held to declare (let alone defend) their policies in parliamentary speeches, or in televised interviews.  Their intentions are explained in thick treatises – the likes of which most people never read.  So, as Israel underwent that judicial refo… err… “constitutional revolution,” there were no mass demonstrations; no passionate protests; and certainly no ‘well-intentioned’ international interventions.

But that does not mean that everybody agreed.  Among the first to notice and be alarmed by the new regime was Prof. Ruth Gavison.  An avowed leftist and staunch defender of human rights, she would have been no friend of Yariv Levin – let alone of Smotrich or Ben Gvir.  But, on legal grounds – as she explained in respectful terms in a series of articles – she profoundly disagreed with the stance of the Supreme Court.  According to the adversarial and due process principles governing legal procedures, a court of law must hear both sides of the argument; hence, she stated, there was a fundamental flaw in not allowing the government to defend its case.  In addition, Prof. Gavison argued that the Court should limit its interventions to legal issues; straying too far into political ones, she worried, would undermine its prestige and sap people’s trust in it.  Her warning was to prove prophetic: over the past two decades, as the Court’s new interventionism became increasingly visible, the proportion of Israelis declaring trust in the Supreme Court slipped steadily.  Currently only c. 40% of Israelis express trust in that institution.

Because of her criticism (however courteously expressed), Ruth Gavison became Israel’s greatest legal mind never to serve on the country’s Supreme Court.  When her name was put forward for nomination, Chief Justice Aharon Barak blocked her candidacy.  And he made no secret why he was doing it: in a public speech, he explained that

“[her] agenda doesn’t fit and isn’t appropriate for the Supreme Court.”

“Let them judge the people at all times…”

But how can one man (even the Chief Justice) block someone’s candidacy?  Well, in Israel he can: the composition of the Judicial Selection Committee all but guarantees that the Chief Justice can veto anyone s/he doesn’t fancy and makes it likely that he could muster a majority of 6 vs. 3 in the 9-member committee.  That’s precisely why a previous government raised the majority needed to appoint a Supreme Justice to 7.

The late Prof. Ruth Gavizon, arguably Israel’s greatest legal scholar never to serve as Supreme Justice.
{By צלם קובי קלמנוביץ – אתר פרס א.מ.ת, CC BY-SA 3.0,}
Chief Justice Aharon Barak blocked Prof. Gavison’s candidature, because he did not like her positions on justiciability and court activism.
{By The judiciary of Israel, CC BY-SA 4.0,}

Changing the composition of the Judicial Selection Committee is one of the items on the current government’s judicial reform agenda.  The new composition proposed would potentially (i.e., if everybody votes as they’re expected to) grant the governing coalition a majority of 5 vs. 4.

But how are Supreme Justices appointed in other democracies?  Well, there is no pattern – the exact procedures vary from one country to another.  Yet even a cursory look should persuade anyone that, in the vast majority of cases, the dominant role in appointing Supreme Justices is held by the Executive (the Government or part thereof), the Legislature (the national parliament or part thereof), or a combination of the two.  In the United States, Supreme Justices are appointed by the President (Executive) and approved by the Senate (Legislature).  In Canada and Australia, Supreme Judges are appointed by the Prime Minister (Executive), with various bodies and personalities being endowed with advisory influence.  In Belgium and the Netherlands, they are selected by the cabinet (Executive) from a list provided by the Parliament (Legislature).  In Denmark, Sweden and Norway, Supreme Judges are appointed by the government (Executive) after receiving non-binding recommendations from an advisory committee – itself appointed by the government.  You get the picture…

A kingdom for a constitution

Humanity has gradually developed a democratic structure which – like any stable stool stands on three legs (or three Separate Powers): the Legislative, the Executive and the Judiciary.  A.k.a. the Parliament, the Government and the Courts of Law.  The existence of three hubs of authority is meant among other things to provide checks (in particular) on the power of the Executive.  It is important to properly calibrate these checks – to ensure that they are sufficiently strong to prevent excesses, while at the same time flexible enough to avoid gridlock and allow the Government to steer the societal ship.  The oft-used expression ‘checks and balances’ hints at the fact that the process is both delicate and dynamic.  The system works according to a set of rules set out in the state’s Constitution.

But do all democracies have a Constitution?  How about the UK?  Is there a Constitution of the United Kingdom?  Yes it does, according to the official website of the Parliament, the UK most certainly has a Constitution.  The parliamentary information hub goes on to explain:

“People often refer to the UK having an ‘unwritten constitution’ but that’s not strictly true. It may not exist in a single text, like in the USA or Germany, but large parts of it are written down, much of it in the laws passed in Parliament – known as statute law.

Therefore, the UK constitution is often described as ‘partly written and wholly uncodified’. (Uncodified means that the UK does not have a single, written constitution.)”

Sweden also does not have a document entitled ‘the Constitution’.  But again, the official website of the country’s parliament (the Riksdag) states that:

“The Swedish Constitution consists of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression. In addition to the fundamental laws, Sweden has a Riksdag Act. This has a unique status in between constitutional and ordinary law.”

But here’s a more interesting question: does Israel have a Constitution?  After all, Israel is different, isn’t it?

Still, the official website of the Knesset says that the country does have a Constitution:

“Israel’s Jewish and democratic values are both grounded in its existing constitutional documents.”

It goes on to list those “constitutional documents”: the Declaration of Independence and the so-called Basic Laws (of which there are currently 13).  There is even a stopgap in the statutes:

“Where a court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel’s heritage.”

(For those readers unaccustomed to the vagaries of Israeli websites, the expression ‘Israel’s heritage’ is a clumsy translation of the Hebrew מורשת ישראל (a better translation being ‘Jewish tradition’) – to wit the Torah, the Prophets, the Talmud, etc.)

Some may point out that in Israel (unlike in Sweden) many of the Basic Laws can be modified at any time, with a simple parliamentary majority.  But that’s not unique, either: the UK Parliament has similar powers.

Judicial review

So now we know that – praise be to G-d – the United Kingdom has a Constitution and so does Israel.  But what does that Constitution say?  For instance: can the Judiciary (the Courts of Law) overrule the Legislature (the Parliament)?

Not in the UK:

“Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”

Nor in the Netherlands:

“The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.”

In USA, the exact opposite is true.

“The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution.”

The passage above describes the US Supreme Court’s power to strike down not just legislation, but also “executive actions” such as Presidential Orders.  But it also establishes the grounds on which the Court can base such decisions.  Much as they may wish to, the Supreme Justices cannot say ‘President Trump, we herewith strike down your Order, coz it’s really, really stupid!’  No, they can only issue such a decision by showing that the legislation or the executive action violates the Constitution, that it is ‘unconstitutional’.

It should also be noted that, while the US Supreme Court can strike down laws that violate the Constitution, it cannot overturn or amend the Constitution itself.  That is beyond its purview.

Back to the UK: while the UK Supreme Court cannot invalidate laws passed by the Parliament, it can (and does) overturn government decisions.

In 2019, the United Kingdom was tearing itself apart over Brexit. Desperate to end the gridlock, then Prime Minister Boris Johnson decided to use a strange procedure and ‘prorogue’ (suspend) the Parliament.  His decision was, however, nullified by the Supreme Court.  But what were the grounds for that decision?  The Court did not opine that Mr. Johnson’s decision was undemocratic, unethical, unreasonable or damaging per se.  No, the Justices found that the decision was contrary to the existing laws – it was ‘unlawful’.  Judges are entitled to interpret the law, not to substitute their opinions or moral judgments for those of the Executive.

Even so, some (and I’m still talking about the UK, not about Israel!) criticised the Court’s decision:

“Ministers argued that the UK’s highest court was essentially involving itself in political matters.”

In 2019, UK Attorney General Geoffrey Cox accused the countruy’s Supreme Court of usurping the prerogatives of the elected Parliament.
{Chris McAndrew, CC BY 3.0 <>, via Wikimedia Commons}

Attorney General Geoffrey Cox accused the Court of overstepping the mark, of intruding into the political arena and of

“usurping Parliament over key decisions.”

That, I stress again, was the Attorney General of the United Kingdom; not of Israel.  Israel is different…

The BBC noted that

“The Conservative manifesto promised to review the relationship between the executive, Parliament and the courts, including whether the process of judicial review, in which people challenge government decisions in court, is being abused for political ends.”

Quite unlike the programme of the new Israeli government, then!

Israel is different

But let’s not forget that Israel is different.  An outfit called Israel Religious Action Center (established by Israel Movement for Progressive Judaism), warns that

“Israel’s democracy is fragile.”

And that

“the new government […] proposed bills that will dramatically weaken the Supreme Court and thus pose a radical, unprecedented, and dangerous change to Israel’s system of government.”

Some may find that warning a bit overstated.  After all, if the “proposed bills” pass as currently drafted (an unlikely eventuality, as I shall explain a bit later), Israel’s Supreme Court would still retain powers that are superior to those of UK’s highest court – though not as extensive as those of the US counterpart.

But – again – Israel is different.  How so?

We get a learned explanation from Prof. Amichai Cohen, from Ono Academic College.

Firstly, Prof. Cohen addresses

“the power of the legislative and executive branches in Israel’s democracy.  To a large extent, Israeli political culture merged the power of these two branches. The fact that the heads of Knesset factions who form the coalition also serve as senior members of the government, means government decisions drive a significant portion of the Knesset’s activities.”

I hear what Prof. Cohen is saying.  I just don’t understand how the situation he describes makes Israel different from – say – the UK.  The leader of the Tory party currently serves as Prime Minister – which is by all accounts a “senior member of the government”.  When the UK had a coalition government, the heads of both parties served as “senior member of the government”.  And in the UK – even more than in Israel – the government drives the Parliament activities.  In fact, His majesty’s Government has the prerogative of setting the Parliament’s agenda.  This model is found in many other democracies.

True, this isn’t the only model.  USA, for instance, currently has a Democratic administration, and a Senate with a Democratic majority, while the House of Representatives has a Republican majority.  But that’s not a rule: it is not uncommon for the same party to win the presidential elections, as well as having a majority in both parliamentary chambers.  In addition, in the US the Vice president (an Executive position) presides over Senate debates and is entitled to cast the deciding vote in case of a tie.  I wonder what Prof. Cohen would say if the Israeli Deputy Prime Minister were endowed with the same very important power?

If the Israeli executive holds so much power, then how does Prof. Cohen explain that the government is so often voted out by the Knesset before the end of its legal term – something that is almost impossible in the US and very difficult in the UK?

But that’s not Prof. Cohen’s only argument.  While admitting that the Israeli Supreme Court currently has powers that are unheard of elsewhere, he justifies that by explaining that other democracies have one or more ‘other checks and balances’ in addition to the national constitutional court.  Some may, for instance, have a bicameral parliament; others – a President with executive powers; a federal government; regional elections; or they may submit to the authority of a supra-national court, such as the European Court of Human Rights.  Israel, on the other hand – claims Prof. Cohen – only has one set of breaks: the Supreme Court.  Hence, the danger posed by weakening it.

Prof. Cohen’s observations are obviously correct – various democracies work in various ways.  But it’s hard to understand why a bicameral parliament changes the equation.  As we’ve seen, both chambers can (and often are) dominated by the ruling party.

And how exactly is a President with executive powers ‘checks and balances on the power of the Executive?  S/he is the Executive!

The United Kingdom has regional elections and a federal government.  But how does that bring additional ‘checks and balances’?  In 2016, Scotland voted to Remain; the Scottish government and parliament were dead set against Brexit.  But did that check Westminster’s power to effect Brexit?

Obviously, if a democratic country submits to the rulings of an international court, that does indeed represent additional checks and balances (at least, with respect to some issues, as these courts don’t get involved in every issue).  But not all democracies submit to such courts; and a few that do submit (at least in theory) have rather chequered ‘democratic’ credentials; see for instance Turkey, or Russia prior to its invasion of Ukraine.  Hungary and Poland remain affiliated with the European Court of Human Rights – which did not check the power of those governments to implement judiciary reforms…

One issue with Prof. Cohen’s article is that it is so recent: published on 23 January 2023, after the new Israeli government published its reform proposals.  It feels a bit like post-rationalisation of a pre-determined opposition to those reforms; an attempt to seek differences, rather than determine whether there are differences – and their relevance.

We get a less well-argued – but perhaps more honest – view from an article written by Prof. Alon Tal, who is Professor of Public Policy at Tel Aviv University.  It’s entitled “Note to Rothman: Israel is not New Zealand” and, as the title suggests, it is rhetoric, rather than academic – relying (I suspect) much more on Prof. Tal’s political opinions as a former Member of the Knesset, than on his research expertise.  Prof. Tal admits that, just like in the UK

“New Zealand’s courts have never been authorized to conduct judicial review about the constitutionality of its parliament’s laws.”

Prof. Alon Tal, who thinks that “Israel is different.” Among other things, it lacks the “Anglo civility” that characterises New Zealand…
{By Alon Tal – Alon Tal, CC BY-SA 3.0,}

So why is Israel different from New Zealand?  Prof. Tal largely rehashes the same points described earlier.  But that’s before adding his ‘original’ contribution.

“I believe that the differences [between Israel and New Zealand] run even deeper, reflecting fundamental cultural disparities.”

So what “cultural disparities” are those?  Prof. Tal (who spent some time in New Zealand) waxes lyric:

“I always like to think that the relatively gentle and ingenuous New Zealand political culture reflects the country’s unique ecological circumstances. Anyone who visits New Zealand is immediately struck by the ‘ecological naiveté’ of birds who happily fly right up to humans to get a closer look. This curious behavior is explained by the historic lack of natural predators. From time immemorial, there simply were no indigenous mammals on the remote island. New Zealand’s domestic political system also evolved in a world without political predators and national enemies. This is manifested in a decided civil and consensual political culture.”

It’s a moving picture, it really is.  Too bad it is based on a very un-academic amount of wishful thinking.  True, owing to its geographic isolation, there are very few native mammals in New Zealand.  But there are birds of prey that don’t exhibit much “ecological naiveté” when it comes to securing food.  And there is definitely a species of very dangerous mammals: one sometimes referred to by the Latin name Homo Sapiens!  It is the predatory Sapiens that hunted most of the islands native large birds to complete extinction.  Only the bones of the Moa birds (actually 9 different species) can still be found, spread all over the islands.  I guess they exhibited a bit too much “ecological naiveté”!  The Maori – the local Homo Sapiens – were often engaged in tribal wars, before being themselves subjugated, partially displaced and partially exterminated by the European Sapiens invaders.  So much for “the historic lack of natural predators” that manifests itself “in a decided civil and consensual political culture.”  One of the parties comprising the country’s “gentle and ingenuous” political culture calls itself ‘New Zealand First’.  Strongly nationalist and populist, ‘New Zealand First’ opposes immigration and ‘special treatment’ for the native Maori population…

All this seems to have escaped Prof. Tal’s investigative skills.  His article hails New Zealand’s “relative societal homogeneity” and the “pervasive Anglo civility”.  I guess the country’s Human Rights Commission did not read Prof. Tal’s ground-breaking research.  Because a 2021 report makes no mention of those ‘scientific’ terms; it does contain the following conclusion:

“Racism is prevalent in Aotearoa New Zealand: Participants’ experiences of racism consisted of institutional, personally mediated and internalised racism across all levels of wellbeing: civic engagement and governance, health, housing, employment, society and social connections, education and the justice system. Findings emphasised that the ongoing impact of historical and contemporary racism toward Māori remained embedded within colonial systems and institutions […]  The impacts of racism are extensive and span across all aspects of wellbeing…”

Prof. Tal’s “Note to Rothman” is symptomatic of a certain frame of mind which I can only describe as a form of internalised racism: a mentality that tends to view Israelis as uncivilised, uncouth, unenlightened and generally inferior – in particular to ‘Europeans’ or ‘Anglos’.  Well, I’m afraid that this tells us more about Prof. Tal than it does about either Israelis or New Zealanders…

Democracy – what’s that?

Before we bury the Israeli democracy – why don’t we spend a moment trying to understand the nature of that beast?

The Merriam-Webster dictionary defines the term as

“government by the people; especially: rule of the majority”

Of course, nowhere does the people govern directly; it governs through its representatives, who are selected through free and fair elections.  One can understand, therefore, why in the British system the Parliament rules supreme.  The party (or parties) having a majority in the parliament form(s) the government – the Executive that ‘rules’.

But, of course, that dictionary definition is incomplete.

I would define democracy as follows:

“Democracy is a system of governance seeking to balance the will of the majority with the legitimate interests of minorities.”

If one agrees with that definition, it follows that no democracy is perfect, because who’s to say how a perfect balance looks like?  Democracy – like every aspect of life – is messy.  But genuine and perpetual attempt to maintain that balance is what sets democracy apart from tyranny.

Checks and balances

With that definition in mind, I’d argue that Israel has strong checks and balances – stronger than many other democracies.

Some of those checks and balances derive from the proportional representation: in Israel, every party (as long as it gets at least 3.25% of the votes) is allocated a number of seats in the Knesset in proportion to the percentage of the popular vote it received.  So a party that received 10% of the votes should have 12 seats in the 120-strong Knesset.  Since parties often represent the interest of minorities (ethnic, religious, or just minorities of opinion), this system gives those minorities a voice and often a strong political influence.

Compare the Israeli proportional elections with the constituency-based, ‘first past the post’ UK system.  In the latest UK legislative elections (2019), circa 12% of the cast votes went to the the Liberal Democrats.  With a proportional system, the LibDems would’ve won no less than 75 seats in the House of Commons.  The entire map of British politics would’ve been different; in all likelihood, Brexit would not have happened.  But with the ‘first past the post’ system, the LibDems only won 11 seats – a tiny and largely impotent minority in the 650-strong Commons.  The UK system favours large, mainstream parties; it is, in practice, a two-party system.  The proportional system favours smaller parties; a multitude of voices and opinions.

The proportional system means that every Israeli government is based on a coalition of parties.  This ‘forces’ a certain pluralism of opinions, ideologies and world views: for instance, it ‘forces’ religious and secular people to sit together and accommodate each other – otherwise they won’t stay in power.

In coalitions, small factions are often cast as ‘kingmakers’.  This gives minorities disproportionate power.  It may be frustrating – but it also acts as a built-in defence against tyranny of the majority.  Are you outraged that someone like Ben Gvir was ‘kingmaker’ in the current coalition?  Fine, but did you also scream bloody murder when Mansour Abbas was cast in the same role after the previous elections?  The latter is the leader of an even smaller party (just 4 members of Knesset).  And it’s an Islamist party: from the point of view of homophobia and misogyny, Mansour Abbas is probably worse than Ben Gvir.

Coalitions are inherently unstable: there are perpetual conflicts within the government and among the parliamentary factions.  Concessions and accommodation are the only means to keep the government going.  And when important issues come to the table and accommodation becomes too difficult – the government falls and the issues are taken back to the people.  Israel has more elections than most other democracies; and not just because of the last couple of years – it’s always been like that: between 1980 and 2010, Israelis voted in 10 elections; the British only had 7.

What’s more, Israel has a very politically-active population and a very engaged electorate.  Between 1980 and 2010, the Israeli average turnout was 72%; the UK one just 68%.  Even comparing the last 5 elections gives Israel an advantage: despite being called to vote every few months, on average 70% of adult Israelis turned out to vote; in the UK, that average was just 66%.

The combination of more frequent elections and a more engaged electorate results in more accountability for the political class.  We sometime forget that it is the electorate that constitutes the ultimate check on the power of the executive.  It is the electorate – not the Supreme Court, that sets the final limits to power: it’s the voters that send a government home and bring up a new one.

In Israel, the opposition (even a small faction) can force a vote of non-confidence, which has the potential of bringing the government down.  In the UK, it is only the Leader of the Opposition that can demand such a vote; and, although by tradition the government accepts that challenge – by law it does not have to.

In the UK (and in the US, and in other democracies), it is almost impossible to change a government – once elected.  Not so in Israel, where people get more frequently a say.

Israel has a State Comptroller with extremely broad investigative powers.  It has considerable resources that are outside the government’s control.  The State Comptroller employs hundreds of people (lawyers, accountants, surveyors, etc.) whose only job is to investigate and find flaws in how power is exercised.

Israel has some of the toughest, strictest law enforcement agencies in the world.  Look of the list of powerful people that have been investigated, tried and convicted:

  • 1 x President of Israel
  • 1 x Prime Minister of Israel (+ 1 indicted)
  • 11 x Ministers
  • 2 x Chief Rabbis
  • 17 MKs

Is it (as antisemites would say) that Israelis are ‘naturally’ more corrupt?  Or is it that Israel’s law enforcement is tough and fearless?

Last, but not least Israel has a free and extremely influential media.  The Israeli Fourth Estate is truly a fourth power hub.  Israelis are addicted to news.  In Israel, a successful journalist can become Prime Minister – how else has Yair Lapid climbed to that lofty post?  How did Shelly Yachimovich and Merav Michaeli become leaders of the Labour Party?  But a good journalist does not have to become a politician to have great influence.  Journalists feature consistently among Israel’s most prominent people.  Many are household names, celebrities eliciting instant recognition; they wield power and influence – to the point where the current Prime Minister is accused not of taking bribe, but of bribing a media mogul for a ‘kinder’ news coverage…

Israel-bashers like Yachad and New Israel Fund constantly find fault with Israel’s democracy.  And in support of their claims that the country has become less democratic, they… quote articles from the Israeli press!!!

What’s more: while these outfits pursue their obsessive interest in the Jewish state, they never compare Israel’s democratic processes with what’s happening in their own country.  Let me do it for them: in Israel, the media is so powerful, that the country’s longest serving Prime Minister is accused of bribing the owner of one of the major news outlets, in a bid to ‘buy’ kinder coverage.  While in the UK, the Chairman of BBC (the country’s most powerful media outfit and one of the world’s most influential news organisations) is appointed by the sitting Prime Minister; in a recent case, not before he ‘facilitated’ a hefty loan for the said Prime Minister…  Imagine – just imagine – what the likes of Yachad and No… err… New Israel Fund would say if Mr. Netanyahu could exercise the same prerogative as Mr. Johnson (appointing the head of the country’s main media organisation) – let alone doing it after receiving a ‘loan’ courtesy of the latter!  In Israel, the media is so powerful that it’s the Prime Minister who’s suspected of bribing it, rather than the other way around.  And Israel’s democracy is fragile??

Who’s ‘fragile’?

If Israel’s democracy is so fragile, how do you explain its uninterrupted survival in one of the world’s roughest, most unfree regions?  In its modern embodiment, the State of Israel is just 75 years old.  But they’ve been very tough years, marred by existential threats, by war, terrorism, boycotts and unfair ‘criticism’ – certainly more hardship than was thrown at any other free country.

As a result of that, the army (a conscripted army) is very popular in Israel: opinion polls consistently show that the IDF gets by far more support than any other state institution.  Israel is – among so many other things – often accused of ‘militarism’.  Yet in those 75 years, Israelis have experienced a total of… 0 (zero!) military coups.  There hasn’t even been an attempt; or a plot; not even close!

Israel’s ‘critics’ will no doubt claim that this is a low threshold by which to judge a democracy.  But is it, really?  Since 1948, Turkey (a NATO member and EU candidate) has seen 5 coups and coup attempts – the latest as recently as 2016.  Greece (a full member of both NATo and EU) has experienced 3; Cyprus (another EU member) has seen 2; Italy 1 or two, depending on who you ask; Japan – 2; Portugal – 2; Spain – 3 (not counting a 1985 conspiracy and the 2017 suppression of the Catalan attempt at independence).

In 1981, armed military units took over a democratic Parliament; representatives were held at gunpoint.  But that wasn’t the Knesset – the Israeli parliament; it was the Spanish Congress of Deputies.

Spain, 1981: a group of officers take over the parliament. {PaloiES, CC BY-SA 4.0 <>, via Wikimedia Commons}

In 2019, a democratic parliament was ‘prorogued’ or ‘suspended’: sent home, shoved out of the way of the Executive.  But that wasn’t the Knesset, either.

In 2021, another democratic parliament was taken over by an unruly mob.  But, again, it was not the Israeli Knesset.

And Israel’s democracy is fragile??

No party leader in the history of the State of Israel has won more elections (or been more time in power) than Benjamin Netanyahu.  Yet when he lost the elections (at least twice so far in his long career), he went home.  He didn’t like it – what politician does – but he peacefully relinquished power and headed for the opposition.

And Israel’s democracy is fragile??

No, it wasn’t the Supreme Court that stopped Israeli generals from grabbing power; and it wasn’t justices that ousted Netanyahu.  Democracy exists not because it’s legislated (what dictators give a damn about the rule of law?), but because everybody understands that people would put up with nothing less.

That’s why there is freedom of press and freedom of expression in Israel – although neither was ever inscribed in any law.  That’s why human dignity was respected in Israel – long before there ever was a Basic Law about it.

No, laws – however ‘progressive’ don’t create democracy; it’s democracy that makes good laws.

No, it is not the Supreme Court that defends democracy; it’s democracy that establishes courts of law and gives them prerogatives.

Of course we need checks on the power of the Executive; but if the Executive is so bent on doing injustice (as some would have us believe is Israel’s current government) then no Supreme Court will stop it.  After all, judges can be arrested – or worse.

A couple of weeks ago, during a Q&A session, I came across a lady who was really frightened of what an ‘unbridled’ Israeli government might do.  She described a dystopian situation, with Israeli women segregated by law and denied equal rights…  Her fear was genuine and I felt for her; but it was also illogical in the extreme.  How exactly are these laws to be adopted?  The current coalition has 64 members of Knesset (a thin majority of 4) – most of them secular Jews, many of them women.  The Speaker of the Knesset (himself a coalition MK) is an openly gay man.  Are all these MKs going to vote in favour of laws oppressing women, just because they can??

Let me be blunt: those who say that ‘Israel’s democracy is fragile’ are demonstrably wrong.  Those who keep claiming that “Israel is different” and who suspect its government of hatching the most malignant plots simply internalise age-old antisemitic beliefs – that Jews are always different; that they are up to no good.

No, Israel is not different; it is a democratic, liberal country – because its people will have it no other way.

No, even if the reforms were all implemented as currently proposed, Israel will not become substantially different from other free countries.  No, women and LGBT won’t lose their equal rights, nor will Arabs or secular Jews; and people will still be able to send the government home and bring up a new one.

The non-constructive way

But, of course, the proposals will not be implemented as currently proposed.  Those familiar with the Knesset’s legislative routes know only too well that they amount, ultimately, to negotiation processes.  Bills are drafted as starting positions in those negotiations.

And, in fact, the coalition has offered, has almost pleaded for negotiations; it even made small concessions ahead of any negotiations.  The opposition responded that it would only negotiate if the current legislative process is completely stopped.  But stopping it would act as a disincentive to reaching an agreement: why would the opposition concede anything, when it can just keep things as they are while ‘negotiating’ forever and a day?

Taking a leaf off the PLO’s book, the opposition seems content to reject ‘softened’ coalition proposals without any counter-offer.

Don’t get me wrong: I’d like to see this government replaced by a more moderate coalition.  But this isn’t the way.  The current opposition’s refusal to negotiate, its obstinate decision to waste weeks on end, while the proposed reform slowly moves through the Knesset – all these smells of ill will; it all looks like a cynical attempt to scuttle the government, rather than an honest, genuine effort to do what’s best for the country – to find a workable compromise.

I don’t for a moment blame the protestors: the vast majority are good people, albeit naïve and unnecessarily frightened.  But I do question the sincerity and intentions of the prophets of doom – all those ‘leaders’ making deliberately catastrophic, panic-creating predictions.  Fear does not become a good counsellor, merely because it is employed by the left.  By all means argue your case; criticise the proposals; propose something else.  But don’t act as if it’s the end of the world; don’t push naïve people to block motorways, to ‘refuse’ their army duty or to harass politicians’ spouses.  Such scorched-earth political tactics will ultimately blow in your faces.

And, controversial as this may be, I am going to criticise also the President, Yitzhak Herzog.  That he is trying to help is nothing but worthy of praise.  That he is coaxing coalition and opposition leaders to meet up is wonderful.  But talk of ‘civil war’ is wrong and counterproductive.  And presidential proposals for possible compromises should be skilfully floated in closed meetings – not promoted on prime-time TV.

And I have to say that I’m disappointed also with the content of those proposals.  No, not because they favour one side or the other (I don’t care that much about this), but because they don’t seem to be properly thought through.

Take for instance Mr. Herzog’s proposal for the judge-appointing committee.  The problem with the current composition of that committee is that the sitting Chief Justice has – in practice, not in law – a veto on new appointments.  Mr. Herzog proposed a change in that composition: the Chief Justice would still be a member, as would two other judges.  They would be joined by 4 representatives of the coalition (3 ministers and 1 MK), 2 of the opposition (2 MKs from 2 different parties) and 2 representatives of the public whose appointment would require the agreement of the Justice Minister and the Chief Justice.  So a total of 11 members, with at least 7 votes in favour needed to appoint a Supreme Judge.

But, assuming that (as was generally the case in the past), the 2 judges would vote in agreement with the Chief Justice, the latter would still have a practical veto.  After all, the two opposition MKs are very unlikely to support a candidate proposed by the government and opposed by the Chief Justice.  So the proposed change does not… change much at all.

Or take one other presidential proposal: that legislating Basic Laws (i.e. constitutional provisions) would require a majority of two thirds (80 out of the 120 Members of the Knesset).  Given Israel’s proportional representation and the consequential government by coalitions, this would make it practically impossible to legislate Basic Laws.  Rather than encouraging progress towards a more complete Constitution, this freezes the country for the foreseeable future in a sort of constitutional limbo.

The politicisation of everything

As we have seen, in most democracies the Executive has an overwhelming influence on the selection of judges.  In most democracies, government’s legal advisers are appointed by ministers.  But opponents say that in Israel this would lead to the ‘politicisation’ of the courts (especially the Supreme Court) and of the legal process.  Israel is different…

In truth, keeping the Supreme Court out of politics may be a very worthy objective; but it seems to me that that particular ship has long sailed.  When the Supreme Court rules that a certain government decision is ‘unreasonable’ (as opposed to ‘unlawful’, ‘unconstitutional’, tainted by undue interests or procedurally faulty) – isn’t that political?

When Israel’s General Attorney bars the Prime Minister from having any say in the proposed reform – even while bearing ultimate responsibility for its consequences – is that ‘reasonable’?

Is it reasonable to prevent a defendant (even a defendant who is Prime Minister) from raising money to fund his legal defence?

The truth is that it is extremely difficult – if not utterly impossible – to prevent the ‘politicisation’ of anything.  Human beings are social animals – they have political preferences.  Pretending that judges don’t hold such preferences (or they don’t, unless or until they are appointed by politicians) is living in denial.  That such political preferences may at times (even inadvertently) cloud a judge’s legal assessments is an obvious truth – and also a worry.

All democracies recognise this problem; but they deal with it Various democracies deal with this problem in various ways.  In the US, Supreme Justices are appointed by the sitting President and confirmed by the Senate; this doesn’t make the judges apolitical – but it is hoped that, over time, the Court’s political makeup will more or less resemble that of the electorate.  In the UK, the conundrum is resolved by making the Court subservient to the Parliament and interpreting justiciability in a narrow, ‘non-activist’ way.  Other democracies simply rely on the judges (who are appointed by ruling politicians) to place their professional integrity above political impulses.

None of the solutions above is of course perfect; but then, what is?

Then, there are those who claim another type of ‘politicisation’: if a certain politician (say, the Justice Minister) has the main role in appointing a particular judge, won’t it mean that the judge would forever be indebted to that politician?  And therefore ‘in his/her pocket’ and likely to issue biased court rulings?

Well, this may be a worry, too.  Except that it ignores human nature.  Yes, the judge may feel ‘grateful’ – though s/he is likely to feel deserving of that appointment.  But once appointed, Israeli judges serve until retirement – they can be dismissed only in the most extreme cases.  So how long would that ‘gratitude’ be felt – and how far would a professional jurist go to show ‘gratitude’ to a past ‘benefactor’?

To find answers to these questions, we only have to look at the example of former Attorney General Avichai Mandelblit.  A lifetime member of the Likud Party, Mandelblit had a close relationship with Benjamin Netanyahu – dating back to the former’s military career.  It was Netanyahu who first appointed him Cabinet Secretary in 2013 and who, in February 2016, manoeuvred to make him Attorney General.  Yet by July 2016, he was leading a review into allegations concerning Netanyahu and by January 2017 was approving the Prime Minister’s formal questioning by the police.  Finally, in 2019 Mandelblit indicted his former friend and ‘benefactor’ on charges of bribery, fraud, and breach of trust…  So much for ‘gratitude’!

Is a reform needed?

But what’s wrong with the current system, in the first place?  Do we need a change?  If asked these days, the opposition would probably answer in the negative: after all, the current system ties – at least to some extent – the hands of the government.  But in the past, many prominent members of the current opposition had held quite different views.  In fact, opinion polls consistently show that a majority of Israelis believe that the current system needs to be changed.  The disagreement is over the nature and extent of the changes.

Still, a dear and respected friend came up with this very good question: “Do we need to do it now?” she asked.  “Is this our most pressing priority?”

My answer to that excellent question is ‘No, not necessarily’.  On the other hand, not being “the most pressing priority” isn’t a good reason not to do something.  Prioritising is a good thing, but every government wants to govern, not reduced to fighting fires.

For me, the most compelling reason to change things is that the current situation works – counter-intuitively, I know – as a bulwark against good, truly progressive legislation.  It has inadvertently created a disincentive to genuine progress.

As mentioned, from its very establishment in 1948, the State of Israel aspired to be a democratic country, with free and fair elections, freedoms and respect for the rights of minorities and the individual.  These principles found expression in the Declaration of Independence and were implemented in practice, but were not explicitly anchored in law.  In 1992, however, the Knesset legislated The Basic Law: Human Dignity and Liberty, which explicitly protected human life, body and dignity, property, personal liberty and privacy, as well as regulating the right to enter and exit the country.

The legislators that enacted the law intended it to be followed by others of the kind, so that together they would form a Bill of Rights.  But that never happened.  In fact, consecutive governments (both left and right wing) avoided the issue like fire.  And the main reason was the new Supreme Court ‘activism’ – led and promoted by Chief Justice Aharon Barak.

Under its militant President, the Court chose to ‘interpret’ the Basic Law in the broadest conceivable way (and occasionally in ways that may border the inconceivable).  It ‘read’ into the Law ‘rights’ that were never written in it.  It allowed people and organisations to sue based on vague, unheard of generalisations of the term ‘dignity’; and not just people who could claim that their dignity was affected (i.e., those who – in legal terms – had ‘standing’), but anyone who wished to sue.

The Attorney General and the legal advisors (themselves partisans of the Court’s ‘activism’ doctrine) refused to oppose this tendency; in fact, they used the law to ‘pre-empt’ laws and government actions from even getting their day in court.  The inflation of ‘rights’ and ‘liberties’ became a huge constrain on the ability to govern, even in matters of national security.

To give just one example: in the early 2000s, Israel was reeling from an unprecedented wave of Palestinian terrorism.  Rather dishonestly dubbed ‘the Second Intifada’ (it was nothing like the First), it consisted of suicide bombings and other attacks targeting random Israelis in restaurant, cafés, buses, shops and markets…

In response, the government took a series of steps, culminating with the building of a security barrier restricting the access of Palestinians to Israel proper and to most Israeli ‘settlements’ beyond the Green Line.  But there was one easy way for any Palestinian to gain access to every place in Israel: by marrying and Israeli citizen (usually, of course, and Arab Israeli).  A few of these spouses became involved in perpetrating acts of terrorism.

In response, the Government initiated new legislation, which barred future Palestinian spouses from settling in Israel, except in humanitarian cases.  This was passed by the Knesset as an amendment to the Citizenship and Entry into Israel Law.

To many, it may seem reasonable to prevent the entry of enemy nationals into the State of Israel – especially given the risk of terrorism activity.  But the new legislation was swiftly referred to debate by the Supreme Court.  Supreme Justices, of course, are not accountable for the security and general welfare of Israel’s citizens; that responsibility belongs to the government.  So they – the Judges – can afford to make decisions based on highfalutin ‘principles’, as if the Green Line were the border between Finland and Sweden.

The Court read the Human Dignity and Liberty Law and ‘discovered’ that there was a “right to family life”.  I say ‘discovered’, because such right is nowhere mentioned in the law.  Yet 7 out of 11 judges sitting on this panel (including Chief Justice Aharon Barak) opined that such right was “a derivative of human dignity”.  Not just that, but apparently the Palestinians’ “right to family life” could only be fulfilled by moving to Israel to join their spouses – rather than the spouses joining them in the West Bank.

To make the law more ‘palatable’ to the Supreme Court (and thus achieve the Judges’ grudging acceptance of this security measure), the Knesset had to considerably dilute it and also limit it in time. The prohibition of settling in Israel with their spouses was thus limited to younger Palestinian (men under the age of 35 and women under the age of 25) – who are statistically more likely to engage in acts of terrorism.  In addition, the law’s validity was limited to one year; in practice meaning that the Government had to humbly go to Court on a yearly basis and ‘demonstrate’ all over again that the impingement on Palestinian dignity was still ‘proportionate,’ in view of the risk to Jewish life and limb.

Even that did not quite satisfy the Judges; they accepted the law with a majority of 6 vs. 5, but one of the 6 (Edmond E. Levy) added in his ruling the following thinly veiled threat:

“if changes are not made, the law will be unlikely to satisfy judicial scrutiny in the future.”

The elected parliamentarians were thus put on notice that they better change their policies – or else; the only problem being that this harsh warning was delivered not by the people (i.e. the electorate), but by an unelected judge.

It may be interesting, in passing, to mention also the identity of the petitioner in this case: the outfit that sued Israel’s Interior Ministry is called ‘Adalah’ and purports to defend the rights of the country’s Arab minority.  As part of this ‘defence’, Adalah (which is funded among others by New Israel Fund) has compiled a ‘Database of Discriminatory Laws in Israel’.  To give just one example: Adalah identifies the ‘Flag and Emblem Law’ (adopted in 1949) as discriminatory towards Arab Israelis, because it

“[a]dopts the flag of the First Zionist Congress and the Zionist Movement, a combination of a prayer shawl and the Shield of David, as the official flag of Israel.  The emblem of the State of Israel is a candelabrum, one of the symbols of the Temple era in Jewish history.”

I mention this here, because the Board of Deputies of British Jews may wish to submit a similar complaint: after all, the UK flag includes the Cross of St. George.  Which, given its Christian connotations, is certainly discriminatory, not just towards Jews, but also Muslims, Hindus, Sikhs, Buddhists and Zoroastrians!

Jokes aside: the Court’s tendency to ‘creatively’ interpret the concept of human dignity had a chilling effect on the propensity of Israeli ministers and parliamentarians to advance additional human rights legislation.  After all, if the concept of human dignity can be used as ‘source’ for a ‘right’ of enemy nationals to settle in Israel, God only knows what ‘rights’ might pop up from the woodwork if – say – the concept of equality before law was also inscribed in a Basic Law?  Propped by New Israel Fund donations, Adalah would probably claim that achieving ‘equality’ demands that the population of Gaza be provided with Iron Dome batteries…  Or (as a few anti-Israel politicians have already demanded) that Israel be prevented from acquiring them in the first place.

It is, of course, the role of judges to interpret the law.  But ‘interpreting’ should mean deriving the meaning originally envisaged by the legislators – not using one’s own imagination.  Sure, I understand the judges’ temptation to pull mightily at the ends of existing laws, in an effort to cover genuine or perceived gaps in Israel’s constitution.  But in so doing, they encroach on the prerogative of the Legislature; they arrogate themselves the power to decide not just what is legal, but what is moral and good – a power that (both legally and morally) does not belong to them.

And it’s not just the effect on legislators – but on all of us.  Laws should be seen as rigid by definition; when they are made elastic, overly-dependent on interpretation, they tend to lose their authority.  That’s why we have laws in the first place – rather than just judges to assess what’s right or wrong.

There is also something counter-productive in the hyperinflation of ‘human rights’.  We have, as we’ve seen, a ‘right to family life’ – which some insist is a ‘human right’ that cannot be denied even to the most inhumane criminals.  We have economic rights, employment rights, rights to education, rights of free movement, rights of asylum and many, many others.  I am not saying that they are unimportant or that they should not exist.  But perhaps it is unwise to place them in the same category as ‘natural rights’ such as the right to life, the right of self defence or property rights.  There is a reason why the Seven Noahide Laws and the Ten Commandments sit above the 613 mitzvot…

The lady doth protest too much, methinks!

It goes without saying that, in a democracy, people have the right to protest: to demonstrate, to carry placards, to make speeches and chant slogans.  But when I hear people talking about ‘peaceful protest’ (or even ‘non-violent protest’) I don’t quite understand what they mean.  Surely if it were violent or warlike it wouldn’t be a protest – but something else?

The misconception appears to be that everything is legal, as long as it’s ‘non-violent’ – as in “we were arrested, despite not bashing anyone’s head in!”

That’s nonsense: blocking trains or motorways may not be violent.  But it isn’t legal, either.  It interferes with people’s lives, causes economic loss and may even result in loss of life and limb.

But “hey”, I hear you saying, “what about the suffragettes?  Didn’t they break the law of the land – in order to improve it?”  They certainly did!  But those promoting this ‘argument’ forget an essential ‘detail’: the suffragettes did not live in a democracy.  Like the American colonists, they engaged in unlawful protest because they were denied lawful representation in the ruling institutions.

In a dictatorship, the ‘law’ is just an instrument of oppression and breaking it (even resorting to violence under certain circumstances) may be the only way to assert one’s rights.  Not so in a democracy, which offers legal avenues to right any wrongs.  Democracy offers the opportunity of persuasion; tyranny does not – it is based on coercion.

That’s why I would welcome an insurrection that took control of the Iranian Majlis; but I condemned the 6 January 2020 assault against the US Congress.  The two things are fundamentally different.

But who can protest Israel’s judicial reform – or even Israel’s government?  The short answer is, simply, anyone.  I am not suggesting that any legal protest should be restricted – let alone prohibited.  If anyone does suggest that, they’ll find in me a stubborn adversary.

But I am also entitled to express opinions about protesters – or at least about some of them.

Israelis, especially those actually living in Israel, have every right to demonstrate, to protest, to scream and shout.  It’s their country and they can use the right to protest to promote their political views and try to persuade their countrymen.

I question why would Israelis living in the UK want to demonstrate in front of their Embassy?  They may, but why would they?  If one truly believes (as they say they do) that the proposed reforms are wrong and that this government should be brought down before it causes irreparable damage –  then they should persuade Israeli voters, not British Jews or Brits in general.  How is protesting in front of the Embassy in any way constructive?  Does anyone really believe that Israeli politicians (or any politicians, for that matter) will change their minds because people who don’t vote don’t like them?

If this is a way to vent your frustration, then vent away…  But if – as some have implied – the intention is to ‘bring international pressure on the government’, then I find that objective antidemocratic, immoral and just plain wrong.  Decisions that affect Israelis should be made by Israelis – i.e. people who live in Israel, pay taxes in Israel and put their asses on the line in Israel.  Brits have no more business telling Israelis how to run their country than Israelis have to ‘put pressure on the [UK] government’ on issues like Brexit or Scottish independence.  That includes British Jews, who are very welcome to put pressure on the Government of Israel – once they make aliyah; not before, however, and certainly not unless.

Israel’s Embassy is by far the most ‘demonstrated against’ diplomatic mission in London. It’s usually the likes of Palestine Solidarity Campaign and Friends of Al-Aqsa that stage those protests…
{Twitter screen capture}
Officially at least, Yachad does not support BDS. But they do seem to oppose those who oppose it… The group claims to be pro-Israel.
{Twitter screen capture}

The attempt to involve the Diaspora in what is – or should be – an internal Israeli political debate is… I’d like to write ‘misguided’; but I fear that those who perpetrate it know exactly what they are doing.  So I’m going to call it pernicious instead: harmful to Israel, destructive for the Diaspora, toxic for the relationship between the two – and utterly unethical.

If you ‘choose democracy in Israel’ by… denying Israelis their democratic choice, then you choose only crass hypocrisy.  And if you ‘protest’ by breaking the law in the name of the rule of law, then you lost not just my vote – but my respect, too.

About the Author
Noru served in the IDF as a regular soldier and reservist. Currently a management consultant, in his spare time he engages in pro-Israel advocacy, especially in interfaith environments. He presented in front of Church of England and Quaker audiences and provides support to Methodist Friends of Israel. Noru is the Editor-in-Chief of 'Politically-incorrect Politics' ( Translated into Polish, his articles are also published by the Polish portal 'Listy z naszego sadu.'
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