Photo by Maja Hitij/Getty Images
Artillery Row

The real threat to Israeli democracy

How is it “undemocratic” to tilt power towards elected representatives?

“The End of Israeli Democracy. “Israel Is on the Verge of Dictatorship. “Tyranny Wrapped in the Tattered Cloak of Democracy. These are just some of the recent, absurd headlines concerning Benjamin Netanyahu’s attempts to reform Israel’s judicial system.

Back in January, the Israeli government brought forward proposals to curb the vast power of unelected judges and bring powers back to Israel’s parliament, the Knesset and to the elected government. The issue has been bubbling since the mid-1990s, when the power of the Supreme Court started to grow exponentially.

Before a landmark ruling in 1995, the Supreme Court acted with considerable restraint — only intervening when a government agency surpassed the limits of its legal authority. In other words, it fulfilled what most agree should be the legitimate role of a Supreme Court: to ensure that the government doesn’t exceed its powers, whilst avoiding taking politically contentious decisions on issues that are rightly the purview of parliaments and elected politicians.

This strange post-modern doublethink is only achievable by the modern left

This changed completely in 1995 when the court ruled that Israel’s eleven Basic Laws were legally superior to standard legislation. Israel doesn’t have a written constitution, but the ruling effectively granted these laws constitutional status. The court also granted itself the power to strike down legislation from the Knesset which it deemed incompatible with the Basic Laws. In turn, this made its role something akin to the US Supreme Court. Without a formal written constitution to refer to, and because Israel’s Supreme Court judges are not appointed by elected officials, the scope of the court’s powers has grown in a way that is indefensible.

The court can now strike down legislation on the basis that it’s “unreasonable” because the government failed “to give each of the relevant considerations appropriate weight”. These are extraordinarily vague terms which give the Supreme Court the power to strike down practically any law which it doesn’t like — and therefore thwart the legitimate proposals of the country’s governments. Netanyahu wants to reform this by allowing the Knesset to overrule Supreme Court decisions through a majority vote. The reforms will also give the executive more powers to appoint judges, as is the case in other jurisdictions such as the US. The idea that it’s “undemocratic” to tilt the balance of power back towards elected representatives is a strange kind of post-modern doublethink only achievable by the modern left.

Why has the move prompted outrage in some quarters? That would be because the Supreme Court, whose justices are self-selected from an elite group mainly composed of the cultural and political left, has significant powers to advance a progressive agenda no matter what the electorate might indicate it wants. Whilst all democratic governments require checks and balances, and many of the Supreme Court’s decisions are reasonable, the problem in Israel is that the court has become an increasingly activist institution skewed towards the views of the progressive left.

In January, the Supreme Court blocked the appointment of Aryeh Deri, who is the leader of the ultra-Orthodox Shas Party, as a minister because it was “unreasonable”. Deri has a highly questionable past, he has been convicted of several criminal offences and he is by most accounts a distasteful figure. However, Israel has no laws against convicts standing for office, and the fact is that he was democratically elected. Regardless of the individuals involved, it’s uncomfortable territory when unelected judges can essentially veto election results.

It’s not as if the court is even consistent. Whilst the Supreme Court sought to block Deri’s appointment to the government, the same court previously overruled the Central Elections Committee’s decision to ban candidates of the Joint Arab List from running for office. This is despite the fact that many of the party’s members and candidates have openly advocated armed violence against Israel. Heba Yazbak was allowed to stand for election despite praising Hezbollah terrorist Samir Kuntar as a “martyr”. The party’s deputy, Mtanes Shehadah, publicly associated himself with Samir Sarsawi, a terrorist who was jailed for thirty years for throwing grenades at civilians in Haifa. Presumably the Supreme Court believes promoting or condoning the slaughter of Israeli citizens is not “unreasonable”? Similar examples are hardly uncommon. The court recently tried to block the government’s attempts to strip citizenship from convicted terrorists who receive funding from the Palestinian Authority.

A prominent financier in Jerusalem told me, “It’s almost like the Supreme Court justices are part of a closed club. For the most part, the judges have similar backgrounds, studied in the same institutions and have a similar judicial philosophy of activism.” Given this, and given the court’s judgements, it’s hard to escape the conclusion that the Supreme Court has become a vehicle for the progressive left to advance its agenda, notwithstanding the outcome of democratic elections.

Courts can maintain a progressive consensus that’s anathema to most

We’ve seen similar situations emerge in our own country and across the Western world. In Britain, the Human Rights Act and Equality Act have taken on an almost sacrosanct status in our unwritten constitution, spawning a huge body of jurisprudence that allows the courts to maintain a progressive consensus that’s anathema to what most people want. The same is broadly true at a supranational level, thanks to the march of “international law” that national governments are apparently unable or unwilling to challenge.

I was in Israel a few weeks ago, and the mood was strange. Most people I spoke to either privately agreed with the reforms, or didn’t really have a strong opinion on the matter and thought the whole thing was overblown. Of course, most suspected that Netanyahu had chosen a self-interested moment to launch the proposals, given the charges that are currently outstanding against him, but what politician isn’t self-interested? That doesn’t necessarily mean he is wrong on principle.

Very few people would say that openly, however, because the left has successfully framed this as a “culture war” issue. To come out on the side of Netanyahu is to declare yourself a wannabe authoritarian despot: an admirer of Orban, Putin, Xi and perhaps worse. It’s not worth risking the potential consequences to your personal and professional reputation.

That would help to explain why the situation in Israel has escalated to such a ridiculous extent. In another world, despite their importance, the proposals would probably be obscure legal reforms only of niche interest. Instead, they have prompted international condemnation, mutinies and general strikes as millions clamber to be seen on the right side of the culture war. As is their unsurpassed talent, the left has managed to blow the issue out of all proportion, obscuring the fact that they’re simply throwing a tantrum because somebody is finally challenging their dominance over the institutions.

In the last three decades or so, it’s become increasingly clear that elections are only meaningful insofar as they don’t threaten the progressive consensus. In Israel and across the West, democratic governments are prevented from enacting legitimate policy proposals by unelected officials who command enormous influence over the judiciary, civil service and other state institutions. It’s not “authoritarian” or “undemocratic” to be concerned about this — quite the opposite.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover