Driving without brakes
On Saturday, January 14, more than 80,000 Israelis took to the rain-drenched streets of Tel Aviv to protect democracy. Standing under umbrellas, they held placards that read, “SAVE ISRAEL,” “CRIMINAL GOVERNMENT,” “THE END OF DEMOCRACY.” They were joined by thousands more in both Jerusalem and Haifa. The streets were filled with Israelis protesting the proposed judicial reforms that would eviscerate Israel’s Supreme Court, politicize court appointments, and hobble the rights of Israeli citizens.
Just two weeks into this new Israeli government, formed by a coalition of right wing, ultra-nationalist, and Orthodox parties, the newly appointed Minister of Justice, Yariv Levin, presented a bill for Knesset approval that would allow a simple majority vote of 61 Knesset members to overrule any Supreme Court decision. In one fell swoop it would empower the government to bypass any court ruling that it didn’t like, including Basic Laws.
It can be hard for us as Jews, sitting in our comfortable homes here in the United States, to find a role to play as this new government begins to dismantle the institutions and the very vision of Israel that we are so attached to. But the tens of thousands who demonstrated in Israel are calling out for our support. It is important for us to pay attention.
The United States didn’t invent democracy, but we certainly polished and honed it to one of the finest examples of government rule. After revolting from a monarchy, the Founding Fathers created a system aimed at empowering its citizens, with checks and balances installed specifically to prevent the government from ignoring the wishes not only of the majority but also the minority. The system enshrined the rights to speak, write, worship, assemble, and petition. That is the democracy Americans have grown up with, know, and love.
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Israel, on the other hand, modeled its government after the parliamentary system of Great Britain, the colonial ruler the Zionist movement had just replaced, the administrative power over the Yishuv during its formative years under the British Mandate. The Founding Fathers of the State of Israel (and Golda) created a parliament with a prime minister. It merged the executive and legislative branches and created a high court and independent judiciary as its only real counterbalance. While Israel generated a marvelous document, the Declaration of Establishment, in which it proclaimed the State of Israel’s existence and provided a vision to guide its governance, it failed to create a constitution.
Israel’s first Knesset, Israel’s parliament, sitting in 1950, was faced with a bloc of legislators who felt there was no need for a Jewish state to have a secular constitution. They believed then (and now) that the only overriding set of laws appropriate to govern the State of Israel already had been given to us by God at Sinai. When the Knesset was forced to postpone the creation of a constitution, it proposed to create a set of Basic Laws that would operate provisionally. The committee to create that constitution is still wordsmithing the document.
The first Basic Law, defining the structure and role of the Knesset, was passed 10 years after Israel’s establishment. Today, 75 years after the creation of the state, there are only 12 Basic Laws. While it is understood that they have a special status, that status is not defined or protected by any legislation. Like other laws, they are passed by a simple majority in the Knesset.
It was Israel’s high court that eventually came to recognize Basic Laws as having a special role. In 1992 the Basic Law on Human Dignity and Liberty was enacted; its purpose is “to protect human dignity and liberty, in order to embed the values of the State of Israel as a Jewish and democratic state, in a basic law.”
It includes the principles that human rights in Israel are founded on the recognition of the sanctity of life, the freedom of the individual, and the spirit of Israel’s Declaration of Independence, that “Every human being is entitled to protection of life, body, and dignity.”
Two years later, the Basic Law on Work was enacted, reaffirming the principles of the Law on Human Dignity in the spirit of the Declaration of Independence. Its purpose is “to protect the freedom of choice of work in order to establish the values of the State of Israel as a Jewish and democratic state, in a basic law.” This assures Israeli “citizens and residents” the right to engage in the profession of their choice.
Because these two Basic Laws prohibit the violation of the principles they project, Aharon Barak, the then president of Israel’s high court, declared the Basic Laws had been given a priority, a position confirmed in a landmark 1995 decision. It would rest with the high court to determine if other laws did or did not violate any Basic Law. This set the foundation for judicial review by the court system. The court reasoned that the Knesset has a twofold function. In passing laws, it is fulfilling its obligations as a legislature; in enacting Basic Laws, the Knesset is fulfilling a separate function, reaching back to its 1950 decision to create them as a provisional constitution. Basic Laws have more weight and should be treated differently.
The independence of the judiciary is itself a subject of one of the Basic Laws. The president of Israel, not the prime minster, heads a committee that selects judges; the Knesset ruling coalition chooses only four of the nine members of that committee.
In a governmental system with few other explicit guardrails, the Basic Laws and judicial review by an independent court system provide the only barriers against abuse of power; at the same time, they guarantee human rights and civil rights, protecting the fundamental conditions for the exercise of democracy in Israel. These are the foundations supporting that well-worn phrase: “Israel, the only democracy in the Middle East.”
That was true, at least, until the election of this newly sitting government, and the package of legislation it calls judicial reform. It is this foundation of democracy that the new administration seeks to dynamite.
Within a week of its organization, the new government proposed to weaken the Supreme Court by giving the Knesset the power to overturn court decisions with a simple majority vote and to change how judges are selected by giving the Knesset control over the Committee for the Selection of Judges.
Prime Minister Netanyahu’s handpicked justice minister, Yariv Levin, claims that unelected judges have too much power. But the plan’s opponents say the proposed changes will politicize the judiciary and undermine Israeli democracy. Israeli opposition leaders, former attorneys general, and the president of Israel’s Supreme Court all have spoken out against Levin’s plan.
The legal changes could help Netanyahu, who is on trial for corruption, evade conviction, or even make his trial disappear entirely. Since being indicted in 2019, Netanyahu has said that the justice system is biased against him.
The thousands of Israelis protesting in the rain recognize that this judicial reform will permit Netanyahu’s government to deliver on its frequent loud promises to undermine the recognition of non-Orthodox Judaism, to annex the West Bank officially without granting civil rights or voting franchise to non-Jewish residents, and to act on the threats new government members already have made against the tens thousands of Israelis who have gathered in peaceful protests of the government’s proposals.
A government without the brakes provided by an independent judiciary and judicial review can be dangerous. And this government, with its extremist agenda, likely will prove to be unsafe at any speed.
Dr. Mark Gold of Teaneck holds a Ph.D. in economics from NYU. He is on the executive board of Partners for Progressive Israel, a member organization of the American Zionist Movement and an affiliate of the World Union of Meretz.
Hiam Simon of Englewood is the past chief operating officer of Ameinu, the leading progressive Zionist membership organization in the United States. He lived in Israel for many years, where he was the dean of students at what is now the Alexander Muss High School, and he served in the IDF as a noncommissioned officer in the artillery.