OPINION
Your weekend long read
TORONTO, March 31/23 – The following article originally appeared today in The David Collier blog, david-collier.com and appears here with permission from the author. David Collier is an investigative journalist exposing extremism and antisemitism. He is based in the U.K.
This is a post that I felt compelled to write but that will make me no friends – on any side. I had originally intended to maintain complete radio silence over the current situation – as is generally my strategy on internal Israeli affairs. Others suggested that given the noise in the UK Jewish community – I shouldn’t remain silent. So here it is – a ‘what on earth is going on in Israel‘ post.
Is it a counter-revolution?
Most people in the UK or US who are currently standing on a roof screaming about ‘a judicial coup’ have probably never heard of Aharon Barak. I want to start by referencing a piece by Hillel Neur, written in 1998, long before his time as the lead at UN Watch:
“With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli judiciary has expanded dramatically, to include the ability to strike down Knesset legislation that in the Supreme Court’s opinion violates normative human rights guarantees.(1) Although the court has yet to play that particular card, every indication is that even if Israel does not adopt a formal constitution, the day is not far off when laws passed by the Knesset will routinely face the review of a Supreme Court charged with the duty of protecting an entrenched set of superceding legal norms.”
Until the 1990s Israel’s parliament was supreme. It is here that those arguing about an ‘end to democracy’ must take pause. Whatever it is that the current government wants to do – it is addressing a situation that arose in the 1990s from a power grab by one of the institutions involved in the constitutional balance of power – the judiciary.
Aharon Barak was an activist head of Israel’s judiciary, and he fundamentally changed the balance of power. Hillel referred to it as ‘what may be the most activist supreme court in the world‘. Hillel also had the foresight to predict the ‘scope creep‘ that came to define Israel’s current judiciary.
We do not need to rely on his critics for this assessment. At Barak’s retirement – this is what Professor Amnon Rubenstien wrote (article here):
“Judge Aharon Barak’s departure from the presidency of the Supreme Court is of importance that goes beyond the world of law: Barak left his mark on Israeli society on an unprecedented scale. It is difficult to find a parallel in other democracies for a similar influence of any judge. Barak is a revolutionary – a smooth-talking revolutionary, but a revolutionary – who convinced his colleagues to follow in his footsteps and adopt an extraordinary legal policy. According to this policy, the courts can review any administrative or legislative act.“
Many may not see a serious issue here – after all his revolution brought many positives, and created a far more liberal society in Israel. Isn’t that a good thing? Maybe to some it is. With a growing religious population, and an inability of the left to win at the ballot box, there are many who may not like where the will of the people (democracy) is leading. This clash is one of the pillars of the current protest.
Is there a problem with the Israeli judiciary?
This is the big question – and the answer is most certainly yes. It is far deeper than one of simply overstepping the constitutional mark – even if the change also has brought positives. If the democratically elected Knesset finds itself subservient to the Judiciary – then who is voting for those who can control Israel’s agenda?
In 2005 the Israeli Prize winning Law Professor Ruth Gavizon was nominated to the Supreme Court. The nomination was rejected. Prof. Gavizon believed that the Supreme Court should reduce its interference in the decisions of the other authorities. This is what Aharon Barak said when he publicly opposed her nomination:
“Her agenda is not good for the Supreme Court”
This shows that the Supreme Court is a self-appointing, self-protecting body. Barak was acting to protect his platform, which allowed him to oversee and override the democratically elected Knesset. If new members of an activist Supreme Court, are chosen by a system which is dominated by the Supreme Court itself, then who is guarding the guards?
In democratic nations, judges in the highest courts in the land are voted in through different systems. In the US Supreme Court judges are voted in through the political system. Whilst it has its critics, this creates a system that should reflect the will of the people. In the selection systems of most western democracies, the political influence is clear (See examples of Germany and France). Rooted at the base of all these systems – is a delegation of power that was received through a democratic mandate. Israel is different.
There are nine members on Israel’s selection committee. Three are members of the Supreme Court, which means the ‘internal appointment’ bloc is the largest on the committee. Two more are from the Bar Association – which means with five of the nine seats, Israeli courts become a self-appointing body. Further – SC nominations need seven votes (from the nine) to succeed. Which gives the Supreme Court absolute veto power (with a bloc of three votes).
Overreach
The problem in Israel is two-fold. The first is the system through which Judges are nominated. The second is overreach. In the UK, unlike most democratic countries, the nomination is not as political and judges are selected with the assistance of a specially constructed Judicial Appointments Commission – designed to create a careful ‘balance’. But in the UK, unlike Israel – Parliament is supreme.
In Israel the court, a democratically unelected body – has taken to define the law in a manner which permits it to interfere via a ‘reasonableness doctrine’ – which permits SC judges to overrule any Parliamentary ruling that contradicts their own definition of what is reasonable and what is not.
“As the Court limited the use of non-justiciability, it expanded the doctrine of reasonableness. Reasonableness allowed judges to void any administrative decision they held to be unreasonable, essentially allowing judges to substitute their judgment for that of the executive branch. At the same time, the Court got rid of the requirement of ‘standing’, which meant that only parties directly affected could petition the court.”
This all means that the Israeli SC
- Is a body which appoints through a ‘friend of a friend’.
- Has become ideologically an activist group.
- Was continually expanding the area of its interference.
- Had set itself up as an override of the Executive branch.
International interference
What makes all this worse, from a democratic perspective, is the external (non -Israeli) influence on the court. For example, in the UK, like most democratic nations, Judicial Review is dependent on a issue of ‘standing‘ – which in an attempt to ensure that only those directly involved (with a sufficient interest) can raise these issues before the court. This matter is ‘tested’ before the court will sit to consider a case.
Standing in judicial review proceedings: No ‘carte blanche’ for public interest groups
In Israel, the now activist Supreme Court, practically abolished this limitation.
Israel is a country at war, it has a long-lasting dispute with the Palestinians, and it faces an international community that is opposed to many of Israel’s interests. It is a simple statement of fact that the majority of nations have bought into pro-Palestinian rhetoric. Since 2001 a network of NGOs has opened a new front – which has recently led to B’tselem, HRW and Amnesty calling Israel an ‘Apartheid state‘. All of these NGOs are dishonest and none of these actors have Israel’s best interests at heart. Some like Adalah have produced large reports full of lies about discriminatory laws in Israel.
These NGOs are supported and funded primarily through bodies such as the EU, or charities that are inherently hostile to Israel. This opened a direct line between the enemies of the state of Israel, and an activist court with a left-wing bias, that ideologically wanted to curb Israeli government activities. Israel’s democratic system becomes totally bypassed. This is not a bad thing if you are a Jewish left-wing activist group in the UK that opposes the ‘occupation’ – but it is not so great if you are an Israeli voter being silenced.
Those who have supported reform
In the mess that has unfolded over recent months, it would be easy to lose sight of all this. It would appear to many that the new coalition has decided to introduce reform and everyone who is sane is against it. This is a long way from the truth. For example, Tzipi Livni – a major voice in the anti-reform camp – had a different view when she held a position of power.
The last government, saw Yair Lapid and Naftali Bennett agree measures to curb the SC’s overstep:
Going back further, Levin (the proposer of the reform laws today) worked alongside Naftali Bennett in 2013, in trying to reform the SC, including the composition of the selection committee. The will has always been there, the only question is why these reforms have not taken place before? The problem lies in Israel’s PR system.
The proportional representation issue
Israel’s PR system famously creates non-stable governments. It also raises a counter argument for those suggesting the missing ‘second chamber’ is a key weakness in Israel’s democracy. Israel does not have a first-past the post system – which in turn means that the executive is formed through a coalition of different voices from within parliament. It mostly leads to a diverse representation, numbing the potential pitfalls of an overly-powerful executive without a checks and balances system. It should also be remembered the House of Lords – the UK’s Second House, had its power to confront government neutered.
The will to bring about a reform has been there for many years – and has intensified as the Judiciary became increasingly politicised. But the means was not there, as Israel’s PR system inevitably led to weak coalitions without a clear ideological vision. Whatever reform some wanted to bring, there was always opposition from within. Until now. The last election saw the first ideologically closed coaltion for over thirty years.
Which has led to the reform bill.
What is going on?
If there is a stable government, and if it was democratically elected – then what’s the problem?
Let me first put the notion of ‘right’ v ‘left’ to bed. Gideon Sa’ar is not a leftist. Avigdor Leiberman is not a leftist. Benny Gantz is not a leftist. Israel’s current political situation is built up around many things, but ideological positioning vis-a-vis the Palestinians is only a small part of the mix.
Netanyahu has been in power a long time and he has created a lot of enemies. People like Ehud Barak, Ehud Olmert and Limor Livnat – key faces in public opposition to Netanyahu – all have a long history of political and personal dislike for Netanyahu. Added to this, there are current political adversaries who came from the Israeli right, such as Avigdor Leiberman and Gideon Sa’ar. Finally there are centrists – who could have been potential partners in a Netanyahu government – who will have nothing more to do with him – like Benny Gantz.
Over the last decade a distinct ‘anti-Bibi’ camp formed, and for the last few years, it was this battle, rather than any fought on ideological grounds, that defined Israeli politics.
(I have deliberately left the Netanyahu court cases to one side. It is symbolic of the problem. Many on the left and centre see Netanyahu as a ‘crime minister‘. Those on the right largely believe the ‘hounding’ of him on ‘spurious charges‘ is just part of the system’s attempt to undermine the right wing. This in turn means that many see his drive for judicial reform, as a means for him to escape the judicial process himself. Pick your side, but having followed the cases closely, it is difficult to esape a conclusion that some political targetting in the process has occured.)
So many burned bridges – whether of his own doing or not – left Netanyahu with a coalition problem. The last election results meant he could easily build one – but he had no options in who his partners would be. This was made even worse, by the actions of the anti-Bibi camp. Although they are unlikely to ever engage in introspection, after the previous election – in order to bring Netanyahu down – left and centrist parties offered Naftali Bennett, a leader of a minor party on the right wing, with just seven seats – the PM chair. He took the bait. Many of his voters felt betrayed, his party imploded, and it created a vacuum in the ideological space that those such as Ben Gvir swiftly filled.
Trying to stay on top of all this is not easy.
The two Israels
The election gave Israel a coalition in which almost half of Israel does not feel represented at all. Populations of major cities such as Tel Aviv, which is dominated by left and centrist voters – look with horror at a right wing and religious bloc that they feel is alien to them and their values.
But here is gets increasingly divisive. Proportionally more Ashkenazi Jews vote left or centre – and the reverse is true for Israel’s Sephardim and Mizrahi Jews. Parties such as the Likud and Shas are dominated by voters who are Jews with a family heritage in places such as Iraq, Morocco, Iran, Egypt, Tunisia, Yemen and Syria. These people often feel like they are second class citizens – whose votes and values are overruled by what they see as a country dominated by an Ashkenazi elite. Little is more representative of this dominance than Israeli institutions that do not seem to cater for Israel’s ethnic diversity at all – institutions such as the Israeli Supreme Court.
The concerns of these voters should not be so easily dismissed. Certainly not with the empty smears and name-calling that currently fills the airwaves.
For most of those reading, much of this may seem odd. Both the UK and US are solid Ashkenazi populations with a centrist / leftist slant. Their friends in Israel are mostly Jews with an Ashkenazi heritage living in places such as Tel Aviv, Herzliya and so on. When they speak to their ‘Israeli friends’, they are rarely escaping a bubble similar to the one they live in at home. It may seem to those who read the Jewish News, that ‘all of Israel’ is in uproar. But this is not true at all. Only half of Israel is.
Israel has regular elections – and we know how the Israelis vote. Whether you are willing to accept it or not – large parts of Israel want the reforms, and this is not as one-sided, or as clear-cut, as some in the UK ro US may want you to believe. Much of this protest is not about the reform itself, but about getting rid of a government that has just been voted in. Opposition to the proposed reform becomes the excuse and the banner to stand behind. This reminds me of a Brexit style argument with two deeply divided sides throwing empty smears at each other.
The reform was watered down, has now been halted – and the sides have come to the table to talk. We can all take a breather until after the upcoming holidays and celebrations.
Round one is over. Hopefully sane heads and wise voices will avert the need for a round two. In the meantime, I have antisemites to fight.♦
David Collier’s writings help challenge the revisionist narrative and expose lies and antisemitism. In 2017 he was named by the Algemeiner in the J100 as one of the ‘top 100 people positively influencing Jewish life’. In 2022 the media watchdog CAMERA gave him a ‘Potrait of Courage’ award.
Credit: david-collier.com
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