“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.
