Unelected judges should rule… Seriously?

Melanie Phillip makes the case for Netanyahu's reforms


TOPSHOT - Israelis take part in ongoing protests against controversial legal reforms being touted by the country's hard-right government, in Tel Aviv on February 25, 2023. (Photo by JACK GUEZ / AFP) (Photo by JACK GUEZ/AFP via Getty Images)

March 23, 2023 09:55

Many appear to believe that the Israelis demonstrating en masse against the government of Benjamin Netanyahu are trying to save Israel’s democracy from destruction.

Nothing could be further from the truth. While there are legitimate concerns about aspects of the government’s programme and certain members of the coalition, a dangerous and anti-democratic hysteria has taken hold.

This has been incited by people such as opposition leader Yair Lapid, with his battle cry of “bring the government down”. Or the mayor of Tel Aviv, Ron Huldai, who said democracy leads to dictatorship and “countries don’t become democratic again except through bloodshed”.

This crisis is the outcome of a perfect storm.

There’s the extreme loathing of Netanyahu by people for whom his every move is axiomatically corrupt, mendacious and self-serving.

There’s the fear of an extremist government, fuelled by anxiety about three nationalist and religious ultras in the coalition along with the religious parties.

And there’s the anxiety on the left, whose political marginalisation in the face of the Palestinian Arabs’ murderous intransigence is being cemented by the increase in Orthodox and Mizrahi communities who have no patience for liberal pieties.

The left are now aghast that the judiciary, upon whom they rely to hold the progressive line against those they collectively demonise as “the right”, may lose their power as the left’s political surrogates.

Democracy involves the rule of law anchored in the consent of the people, expressed through electing the politicians who make those laws. This is safeguarded by independent judges, police and prosecutors and a free press.

In Israel, however, ever since the 1990s when Supreme Court President Aharon Barak began to blur the boundary between law and political activism, the court has increasingly undermined democracy through behaviour that owes more to the judges’ political and ideological views than to law.

It allows anyone to petition the court even if they have no legal standing. It justifies its rulings on a vague and subjective term of “reasonableness” which has no basis in law.

It controls legal advisers who instruct every minister on what to do even if this runs contrary to government policy. The attorney-general may argue against the government in court, while banning it from seeking independent counsel to defend its policies.

The court routinely employs double standards by favouring left-wing over right-wing projects or the rights of Arabs over Israeli Jews. People say there’s no longer any point in voting since the judges run the country.

Under the reforms, the courts will still be able to hold ministers to account. They will be unable, however, to overturn laws passed by the Knesset unless they “clearly” violate an order “entrenched” in a Basic Law.

And politicians rather than judges will dominate the committee appointing new justices.

In the US, judges are political appointments. And Britain prohibits its own courts from striking down laws passed by parliament. Yet America and Britain are not fascist dictatorships.

True, Israel lacks the checks and balances of the British and American systems. This is because Israel’s political structure is deeply dysfunctional and needs radical reform.
But while politicians at least must be elected every four years, the judiciary has no checks at all.

What makes the uproar so absurd is that the reforms will broadly return Israel to the situation before Barak’s judicial revolution.

As law professor Avi Bell has written, for decades after Israel’s Declaration of Independence, only the Knesset could legislate and no court could overturn legislation. The first Israeli government appointed its judges directly, subject to Knesset ratification. Attorneys-general and all other legal advisers could be dismissed and their legal opinions bound no-one. This was all similar to the current reform package.

The objectors’ inescapable logic is that they’d rather have rule by judges than by elected politicians.

This is all of a piece with the West’s post-democracy moment in which people prioritise universal laws over national ones, elevate the legitimacy of street protests and regard politically activist judges as the shock troops of the progressive assault on traditional values.

This mindset now unites most of the progressive classes in Israel, Britain and America. For them, ordinary people who don’t share their views are the “deplorables”. By contrast the judges — educated, liberal, cosmopolitan — are people like themselves.

They justify their position by pointing in horror at the three ultras in Netanyahu’s coalition. But such figures have only gained traction because mainstream politicians have failed to deal with public concern over the rising toll of terrorist violence and the failure to preserve the integrity of the nation by ignoring illegal Arab land grabs. And the court is viewed as having legitimised such lethal neglect.

Democracy in Israel is indeed in danger. But this peril isn’t coming from the government.

Melanie Phillips is a Times columnist.

March 23, 2023 09:55

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