Israel’s Democracy Is Endangered – But Not for the Reason You Think

Israel’s new government is being hammered by an unprecedented political and media blitz, focusing on its intention to restore checks and balances between the judiciary and the Knesset. “If this government does not fall,” says opposition leader Yair Lapid, “Israel will cease to be a liberal democracy,” and its artistic, cultural, and business elites will flee to Berlin and Miami. David Horowitz, editor of the English-language Times of Israel, wrote that the proposals “sounded the death knell for our thriving but inadequately entrenched democracy.” Former Defense Minister Benny Gantz referred (Heb.) to the plan as a “coup d’état,” said that it would lead to civil war, and called for opponents to “take to the streets.” Esther Hayut, the President [Chief Justice] of Israel’s Supreme Court, contended that

…this is a plan to dismember the legal system. It is intended to land a mortal blow on the independence and impartiality of the judicial branch of government and to turn it into a silent branch.

Even Alan Dershowitz, a supporter of PM Binyamin Netanyahu, opposes the reform plan, arguing that it endangers “civil liberties and minority rights.”

In 1948, Israel’s Declaration of Independence established a constituent assembly which was charged with writing a constitution; it met only four times, and then, in 1949, gave up and transformed itself into the First Knesset. Practical decisions about how the state would be organized were to be embodied in a series of basic laws, which (theoretically) would some day be merged into a constitution. The first Basic Law dealt with the operation of the Knesset, and wasn’t adopted until 1958.

Israel has had a Supreme Court since its founding. It is the highest appellate court, like the US Supreme Court; but it also has the ability to sit as the High Court of Justice (Bagatz). The Bagatz has original jurisdiction – it can rule on matters that have not been adjudicated by a lower court. Until the mid-1980s, it was limited to cases brought by individuals or organizations with standing – that is, those who could show that they had been directly damaged by government actions. Jurisdiction also was confined to matters that were justiciable; that is, nonpolitical. These requirements were relaxed, and a vague criterion of “reasonableness” was adopted, which gave the Court great latitude to negate actions and policies that it simply didn’t like. But without a constitutional touchstone to compare them to, the Court didn’t try to overturn laws passed by the Knesset.

This changed in the mid-1990s. In 1992, the Knesset passed two new Basic Laws, which dealt with human rights rather than the mechanics of the state: the Basic Law: Human Dignity and Liberty, and the Basic Law: Freedom of Occupation. These laws were passed with only a few of the 120 Knesset members present (Human Dignity and Liberty had 32 votes for, 21 against, and one abstention; while Freedom of Occupation passed with 23 in favor, none opposed, and no abstentions). I am sure there would have been more interest if the MKs had known how those laws would be used!

In a series of law review articles, Justice Aharon Barak (who would become president of the Court in 1995) promoted the doctrine that the new basic laws provided the missing constitutional touchstone against which Knesset-passed laws could be measured for “constitutionality.” He explicitly referred to this as a “constitutional revolution,” and in 1995 the Court invalidated a law passed by the Knesset on constitutional grounds for the first time. The doctrine was expanded in a series of controversial decisions, some of which – like the 2002 decision to shut down a right-wing radio station – could not have been more political.

Today anyone (one doesn’t need to be a citizen or even a resident) can petition the Court about virtually any government action or law. Foreign-funded NGOs have successfully petitioned on behalf of Palestinians with dubious land claims and brought about the dismantling of Jewish communities and the expulsion of their residents.

The legal and judicial establishment also holds great power through the system of legal advisors. The government, the Knesset, and each individual ministry, must have one. The government’s legal advisor is referred to in English as the “Attorney General,” but the job has far more authority and scope than the US Attorney General. For one thing, the AG’s “advice” to the government is binding! In addition, if the government must go to court, the AG can choose to defend its position or not. The AG is also the head of the State Prosecution, and makes the final decision on whether to prosecute government officials accused of crimes. The ministerial legal advisors, whose advice is binding on the ministries, are civil servants and cannot be fired without the AG’s permission. It’s not an exaggeration to say that the AG may be the single most powerful person in Israel’s governing apparatus, including the Prime Minister.

Supreme Court justices are selected by a nine-member committee, chaired by the Justice Minister. A majority represent the legal establishment, including three members of the current Supreme Court. The AG is selected by the Justice Minister from a short list of candidates approved by a search committee of five members, at least three of whom are members of the legal and judicial establishment. Thus the circle of control is complete.

Almost all of this structure (with the exception of the judicial selection committee) is not anchored in laws passed by the Knesset, but in rulings made by the courts themselves.

Supporters of the current system will tell you that the system is “professional” and not “political” or “ideological,” but in Israel, everything is political. The unelected and unaccountable Supreme Court, Attorney General, and ministerial legal advisors, have intervened in countless governmental decisions and appointments, sometimes creating gridlock in critical security-related areas. For just one example, all of the government’s efforts to deport illegal migrants or to incentivize them to leave of their own accord have been stymied by the Supreme Court, which overthrew four successive laws passed by the Knesset.

The proposal by the new Justice Minister, Yariv Levin, is intended to restore the balance of power between the government and Knesset on the one hand, and the legal-judicial branch on the other. It does not eliminate the practice of judicial review of legislation, but anchors it in a Basic Law for the first time, as well as providing a means for the Knesset to override Court decisions under certain conditions. The proposal also does away with the vague criterion of “reasonableness.” It changes the composition of the selection committee to end the incestuous nature of judicial appointments. Finally, it makes the opinions of the Attorney General and the ministerial legal advisors only advisory and not binding.

These changes would not “destroy democracy,” but they would strip away the almost absolute power over the government held by the legal establishment, which is arguably undemocratic to the extreme. Rather than a coup d’état, it is a counter-coup to restore the primacy of the elected Knesset that the legal/judicial establishment arrogated to itself in the 1980s and ‘90s. This is especially important for a right-wing government, which can find itself hamstrung by the left-leaning Supreme Court and legal establishment.

But I do agree with the critics of the Levin proposal when they say that Israel faces a crisis today that endangers its democratic nature. The danger, however, comes not from the overdue realignment of the power relationships between the branches of government, but from the reaction of those who understand that for the first time in Israel’s history, it might be possible for true right-wing policies to be implemented – and who will do almost anything to prevent that.

In 1977 Israel changed from a one-party socialist state – at times even a dictatorship – into a true democracy, when long-time opposition figure Menachem Begin became Prime Minister. Many of his votes came from the Mizrachi community, most of whom had immigrated in the 50s and 60s, and were finally beginning to become established in the country. The Mizrachim and more recent immigrants from the former Soviet Union have tended to support right-wing parties, ending the political dominance of the old left-wing parties, and providing a solid base for politicians like Netanyahu. But the elites of the academic, media, cultural, and legal establishments were not ready to give up control of what they considered their state. And one of the ways the held onto it was by means of the legal/judicial system. “Why do we vote for the Right and still get the policies of the Left?” many asked. This is why.

The recent frantic, even unhinged, opposition to the changes comes from the understanding that finally, some 45 years after the election of Menachem Begin, the game of elite control of the state may finally be coming to an end. But they will not give up without a fight. Expect demonstrations, provocations, and dirty tricks.