“The prime minister of Israel is a danger to the security of the state of Israel.”
Not an unusually hyperbolic statement in the context of Israeli politics, but these words came from a former prime minister, Yair Lapid.
He was backed by Israel’s consul general in New York, Asaf Zamir, who resigned with the statement that the actions of Prime Minister Benjamin Netanyahu’s coalition government “undermine the very foundation of our democratic system”. Not to mention the hundreds of thousands of Israeli citizens who have been blocking streets this week protesting against the government, following Netanyahu’s sacking of defence minister Yoav Gallant.
Gallant’s offence had been to speak out publicly against the government’s plans to radically overhaul Israel’s court system, including by dramatically reducing the ability of its highest court to interfere with the will of the Knesset, the country’s parliament.
The “reforms” Netanyahu is pushing — with the support of his coalition that includes some of the most far-right parties ever to participate in Israel’s government — are a package of bills directly affecting the High Court of Justice.
Among the key elements is a bill that would change the composition of the committee that selects judges, giving the government a fixed majority so that it can effectively control who gets on the bench, and a bill that would give the Knesset the power to pass laws that the court has ruled invalid. That is, an effective override power.
The background context is important to understand. Israel has no written constitution; instead it has 13 basic laws that cover various subjects and establish some basic rights. The court, historically, exercises a power of judicial review over laws passed by the Knesset and administrative decisions made by the executive government, testing them for validity against the basic laws.
Since 1997, the court has struck down laws, or parts of them, 22 times. Each time has compounded the annoyance of Israel’s governments, which have trended over that period towards the increasingly authoritarian and a much harder attitude towards Palestinians.
Supporters of the proposed changes argue that the court has tended in the opposite direction, taking a liberal or left-wing stance on many issues of policy in direct contradiction with the government’s stance, and therefore inconsistently with the will of the voting public.
An example is a law passed by the Netanyahu government in 2012, allowing the state to detain asylum seekers and migrants for three years or more, some indefinitely. This was triggered by the arrival of some 55,000 African people over the previous years seeking asylum, who the government claimed were a threat to the fabric of Israeli society (sound familiar?).
The court unanimously invalidated the law on the basis that it violated the basic law on human dignity and liberty, calling the detention “a fatal and disproportionate blow to [the detainees’] rights, bodies and souls”.
In 2017, the Knesset passed the Settlements Regulation Law, which allowed the state to expropriate privately owned Palestinian land on which 4000 illegal settlers had built homes, with the effect of converting the property theft into lawful ownership. The court declared the law “unconstitutional”, again because of conflict with the basic law. Its reasoning wasn’t hard to follow.
Netanyahu’s basic point is that when it comes to the details of life in Israel, including its security and treatment of Palestinian people, the choices the country makes are matters for its supreme law-making body: parliament.
As hard-line Justice Minister Yariv Levin said when announcing the reform plan: “We go to the polls, vote, and time after time, people we did not elect decide for us.” It’s the classic plea against “unelected judges”, one that Australia’s Morrison government ministers were often prone to making when our courts overruled their illegal decisions or made rulings they didn’t like. As it was here, it is an argument with no legitimacy in Israel either.
The primacy of parliament as the maker of laws is inherent in any properly constituted democratic system of government. Parliament is elected by the people, and expresses their will through its power to enact and amend laws.
The courts, in such a system, do not make laws — nor do they assume power to override parliament’s will. They do, however, hold parliament to account, because parliament’s powers are not unconstrained either. They come from, and are bounded by, their constitutional context.
In Australia, that context is literally our constitution. In Israel (as in the United Kingdom) it is provided by a looser set of instruments, the basic laws. The courts’ role is to ensure that parliament does not overstep the boundaries of its power; if it does, its actions are invalid and the courts must declare them so.
That tension is essential to democracy’s structure of accountability, in which each arm of government provides checks and balances to the others. None is utterly supreme.
That’s why Israelis are taking to the streets: they’ve identified that Netanyahu’s plans are a direct and unsubtle assault on democracy. They are, in theory and fact, a step in the direction of authoritarian government.
The ABC consistently describes the Netanyahu government’s attempted coup as a proposed ‘reform’. This is like describing the insurrection in the US capitol on 6th January as a public gathering. What the hell is wrong with the ABC?
Just like it’s cousin the BBC the ABC has had to contend not just with budget cuts but also the installation of coalition captain’s picks at board level and in turn at executive level. The ABC hasn’t suffered to the same extent as the BBC which is now right of centre biased.
Yes, the BBC’s loss of independence is obvious and has been highly consequential for the UK over the last decade or so. For example, the BBC gave huge exposure to Nigel Farage for months leading up to the Brexit referendum, far beyond anything that might have been justified by his political support in the country, regularly quoting him and putting him on its leading current affairs programmes, both TV and radio, at every opportunity. The cost of buying so much political advertising would be astronomical. This made Farage one of easily the best-known of all the Brexit campaigners and multiplied his credibility many times over. Nobody on the Remain side got any near so much exposure. Once long ago when the Tories won an election against the odds the UK Sun tabloid ran a self-congratulatory headline, ‘It’s The Sun Wot Won It’. Somehow, after the Leave campaign came out ahead in the Brexit referendum, the BBC passed on its justifiable opportunity to claim ‘It’s The BBC Wot Won It’. The BBC also helpfully boosted Boris Johnson before he was PM by putting him on shows like ‘Have I Got News For You’. Again, the cost of buying such exposure as advertising would be astronomical. The political consequences were… well, who can say?
Surely the issue is less whether it’s “right” or “left” and more that it’s being influenced by the government?
If I think I’m “right wing” I should still be concerned about the government influencing the national broadcaster?
We don’t need to make everything “left” v “right” especially when most people don’t really care, and the people who do are usually wrong.
My in-laws thought they were right wing until they did a political compass test and realised they were closer to Greens supporters (the Greens actually have the strongest policies for promoting individual freedoms which makes them MORE right wing!).
Word meanings and connotations change over time. “Reform” has been used for years in the context of neo-liberal law changes. It is fast losing the connotation of being for the better.
Even so, whether the change is an improvement or not, there should be a clear and obvious gulf between a political reform and a political coup.
One of my favourite words is the German “Schlimmbesserung”………………
An improvement that makes things worse.
You see examples everywhere………………
Usually anything to do with IT.
So true, as I first heard that when working at Document Supply/ILL when in an Academic Library.
A lecturer had put in a request for a paper from a journal to which the library had no access, neither as harrd copy nor through its electronic collection/ejournals.
I had to put a request out on LADD, the Australian Libraries Australia Document Delivery System
The lectured was originally an Osti, who when studying in the former DDR had done her PhD on Frank Hardy writings.
The Library had just adopted a new LMS which had become linked to such requests.
It was supposedly undergoing an upgrade but such was proving a problem with delivery of documents.
On informing the lecturer, she immediately said “Schlimmbesserung !”
And then explained it as “only to make things worse through an effort to improve.”
The notion that reform must produce improvement has been doubted for a very long time. An old quotation is ascribed to Lord Eldon, Lord Chancellor in the 1820s, after he was informed of a proposal to revise some legislation:
Yes, I agree. On the 7pm news last night I heard the young chap who is currently in Jerusalem refer to the changes, or proposals, as “reforms” and was immediately taken aback by such poor understanding of basic vocabulary.
ABC has gone very sadly downhill as a fearless and objective reporter on world news. Thanks to Morrison’s carving off of funding they are reduced to sourcing their “news” from fox et al I suspect.
Israelis protesting for a “democracy” is deemed newsworthy and sure they stopped, for now Netanyahu’s judicial coup d’etat. Good on Jewish Israelis that are willing to fight for THEIR rights – but how about fighting for the rights of the more than 50% of the population of historic Palestine that are not Jewish but live under Israel’s settler colonial apartheid regime! Democracy for some is not democracy!
I think you’ll find it is, similar to China, “Democracy With Jewish Characteristics”…………………
Hmmm. Does that mean we’re going to war against Israel too (because they don’t ‘share our values’)?
When they finally arrive, will the nuclear subs be able to navigate the river Jordan?………………….
I so wish that the Israelis, who have been so courageous and determined in opposing Bibi slipping his collar, were as active and concerned about the theft of Palestinian land and water and barred access to the streets in the Israeli-imposed apartheid on the West Bank, and the slaughter of Palestinians.
I cannot find the article now, but in the last couple of days I saw a fairly detailed description of the difficulties facing the opposition in Israel as it tries to stop this coup. The general point of the article was the huge difficulty of holding together when there are so many divisions in Israeli society. If Netanyahu succeeds in splitting the opposition the coup will succeed. On the one hand the opposition definitely needs the Arab Israelis and wider Palestinian support; on the other hand, if it makes support for their rights part of this fight it will surely lose support from other sections of society. Netanyahu has delayed the vote briefly in the hope of exploiting such divisions.
There was this one recently:
https://uat.crikey.com.au/2023/03/27/israel-civil-war-democracy-palestinians/#comments
While Israel society is split between (very cynical/political) religious conservatives vs. secular moderates, it’s made difficult for Palestinians when similarly split between Hamas and Fatah, while Arab nations pay curiously little attention to the plight of Palestinians? Further, going back generations, Israel became overpopulated by ‘born agains’, first conservative US Jewish immigrants, then Russian etc..
This “reform” is little more than an audacious, Trump style effort by the PM to stay out of gaol by any means possible. A whole country may be turned on its head by one man’s willingness to do absolutely anything to save his skin.
That explains, up to a point, Netanyahu’s reasons, but he is not leading this coup. That task is undertaken by two of the most important members of Netanyahu’s coalition of extremists: the Minister of Justice Yariv Levin and the Constitution, Law and the Justice Committee Chair Simcha Rothman. Both have been deeply hostile to judicial independence for years, long before the most recent government was formed. Now all three can make common cause.
I wonder how they’d feel if the tables turned and the lefties got into power?
Perhaps they would have the wit to follow up by putting in place measures to prevent any such thing for the foreseeable future? That seems to be the standard procedure. If they fail to take such precautions the famous scene from A Man For All Seasons, where a character wants to get the judicial system out of the way, comes to mind:
William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
I think it’s fair to say he’s more than happy with the arrangement and has a way to use it to his specific advantage
What Netanyahu is doing, putting the Executive beyond the reach of the Judiciary as the paramount arbiter of what is lawful, has a certain parallel. In 1933, the German Govt passed The Enabling Act, which effectively enabled the Chancellor to make any laws he wished and override the Constitution, Supreme Court and all other arms of Govt.
https://en.wikipedia.org/wiki/Enabling_Act_of_1933
True. And according to the IHRA guidelines, produced in 2016 and currently being widely adopted – various Australian Universities signed up recently – your comment is anti-Semitic.
Having never heard of the IHRA, I did a search and found it stands for Intersex Human Rights Australia, The International Holocaust Remembrance Alliance, and the International Hot Rod Association. I am assuming you mean the second group.
I have been to Israel twice, and visited, and was greatly moved by, the Yad Vashem Memorial. I have also witnessed the concentration camp at Dachau. I’d have thought that one of the messages the IHRA would want to promote would be to warn against the dangers of a national leader giving him or herself untrammeled power.
Surprised you were not aware of it, there’s been plenty of reports and controversy. Crikey published an article by Michael Bradley, 14 March 2023, about five Australian universities adopting the guidelines, and Guy Rundle on 27 January 2023 wrote about Melbourne University doing so. The Guardian has various articles such as ‘The government should not impose a faulty definition of antisemitism on universities’ by David Feldman, 2 December 2020. The Conversation has several articles with various points of view. There’s a handy article from 15 Jan 2021 on the Jewish Telegraph Agency website “The IHRA definition of anti-Semitism and why people are fighting over it, explained”. And so on.
Thanks SSR. It gets so hard keeping up with it all – there is just so much BS I can take. I put something on Twitter one day comparing the Settlements on the West Bank (I crossed the Jordan River from Amman to Jerusalem and back twice as an Overland tour guide in 1979-80) to the lebensraum policy and got piled on. Although not Jewish, I worked in a kosher kitchen at weekends for three years – Fridays, Saturday nights and Sundays – when I was at uni in the early 70s, including with a wonderful woman (and terrible driver) called Ayela, a Hungarian who had survived a concentration camp as an 8 year old child, married a Czech rabbi and had 5 kids. I am not an anti-Semite but I am pro-human rights, especially in self-proclaimed democracies.
Thanks. For the avoidance of doubt, I was not suggesting for a moment your comment was anti-semitic. My entire point was how absurd it is for the IHRA guidelines to include the assumption that under no circumstances could it ever be valid or acceptable to make the sort of comparison you made, and in addition that no distinction can ever be drawn between Israel and Jews in general.
I don’t suppose the IHRA and its supporters would be making so much effort to impose these guidelines if it was actually absurd to make such a comparison. The underlying reason for their sensitivity is awareness of how the comparison is steadily becoming more obviously appropriate.
It’s interesting to do some research into the 1933 Enabling Act and see who its major backers were
A classic case; combining both being careful what you wish for and the truism that laws, like long knives, frequently come with two edges.