Like most things about Jews, their politics in Israel are also unusual, different, and idiosyncratic. While much of the modern appurtenances of democracy apply to the political conduct of public affairs — human rights, free elections, with a robust party system — there is a noticeable streak of anti-democratic impulses in the body politic.
Labor party stalwart Yitzhak Ben-Aharon commented on that dark (in his view) night on May 17, 1977, when Likud defeated the Labor Party, that, "If that is the people's decision, then we have to change the people."
The principle of majority rule was operative in a coarse, pugnacious way exposing the highly problematic veneer of democratic politics:
Then-Prime Minister Yitzhak Rabin in 1993 shoved through the Oslo Accords in the Knesset with a bare 61-vote majority (of 120 Knesset members) and co opted — i.e."bought off" — politicians while relying also on anti-Zionist Arab votes.
Then-Prime Minister Ariel Sharon, in 2005, committed himself to accede to the results of an internal Likud party referendum on the issue of his disengagement policy from the Gaza Strip and northern Samaria.
Party members voted 60 to 40 against, but Sharon broke his word and crushed the democratic will of his party.
The subsequent expulsion of 8,500 Israelis from their homes and the destruction of their communities and livelihoods, muzzling popular revulsion and incarcerating youth who protested, was probably the most infamous trampling of human rights in the country's history.
In 2021, then-Prime Minister Naphtali Bennett, leading a party with a mere seven Knesset seats (!), yet desperate to form a government, cobbled together a sliver-majority of 61 whose coalition partners included four anti-Zionist Arab members of the Knesset.
Here was a mechanical democracy in crass numbers that lacked the essence of popular democracy in its moral spirit and political integrity.
Likud, though the largest Knesset faction, was shut out of power.
Israeli democracy, in comparison with Western cases or theoretical models, exhibited singular examples of its flaws and frailty:
Although private property was for John Locke the foundation of civil liberty, Israel's lands were overwhelmingly state property.
Governmental restrictions on finances and commerce turned free enterprise into an onerous effort. Throughout mainstream media, academia, and the domain of culture, the hegemonic left denied equal access to those known to hold a nationalist or rightist ideological belief.
Author-activist Erez Tadmor discussed this issue in "Right Voters, Left Rules" (in Hebrew, 2017), charging the Israeli left with "rejecting the idea of pluralism, tolerance, and democracy," in contradiction to its soi-disant ethical credentials.
Heavy-handed police investigations of suspects, a glaring example of which was Nir Hefetz in the prolonged Netanyahu trial record, pointed to a polluted process; and arbitrary criminal investigations of noteworthy national personalities — Yaakov Ne'eman, Avigdor Kahalani, Reuven Rivlin, Avigdor Liberman, and Rafael Eitan — ended with no charges filed.
After dragging important Israelis through the public mire and their human rights quashed, nobody was accountable for this grave injustice.
The government decision with the approval of the court to shut down Arutz Sheva Radio in 2003 and the call to close down Channel 14 in 2020 focused the spotlight on the questionable state of freedom of speech for the Right in Israel.
Israel is now experiencing a clash of philosophies and interests of constitutional proportions between two political camps:
Great Britain saw the Commons against the Crown, Russia Communism against Tsarism, America Black segregation against integration, South Africa apartheid against equality, and in Israel — the Knesset against the court.
In 2019, Israeli attorney Simcha Rothman published, "The Ruling Party of Bagatz: How Israel Became a Legalocracy" (in Hebrew). This book is a penetrating critique of the high court's controversial intervention in significant public issues.
The court, though lacking formal constitutional authority to cancel parliamentary laws or executive decisions, constructed its own legal edifice, brick-by-brick, to adjudicate public (non-legal) questions.
Under Chief Justice Aharon Barak, it utilized the 1992 Law on the Dignity of Man and his Liberty to overturn Knesset laws.
It granted standing in court to individuals personally unaffected by governmental actions. It took decisions not based on law but on 'reasonableness' and 'proportionality' in individual cases.
Abstract universal values superseded national Jewish values in matters of Zionist settlement.
Of moral obloquy in particular was the matter of claims on behalf of illegal African migrant workers that the court took into account over the rights of agonized law-abiding Israeli citizens.While the Africans hang around the parks in southern Tel-Aviv, harass the Jews and instill fear in the neighborhood, Jewish mothers fear sending their kids out to play.
An example of the court's ideological inclination to circuit the law rather than apply it occurred in the matter of Arab candidates running in Knesset elections.
The Basic Law on Parties (clause 7a) prevents candidates who deny "Israel as a Jewish and democratic state" or support terrorism from participating in elections.
However, the court allowed prominent Israeli-citizen Arab politicians, such as Azmi Beshara, Ayman Ouda, Ahmad Tibi, and Sami Abu Shehada, who violated the law in their ideology, rhetoric, and action — like visiting imprisoned terrorists and smuggling telephones to them — to sit in the Knesset.
The Supreme Court, in short, threw conceit to the wind when Justice Barak stated that in a clash between Jewish and democratic values, the decision should reflect the views of the "enlightened public" in Israel:
Barak would perhaps find favor in the proposal of the nineteenth-century English philosopher John Stuart Mill who, in his classic "Considerations on Representative Government" (1861), assigned to education "the degree of superior influence due to it, and sufficient as a counterpoise to the numerical weight of the least educated class."
Universal suffrage, thought the liberal Mill, brings both benefits and evils.
Worth noting is that right-wing Likud voters have been frequently and publicly insulted by scathing epithets — 'primitives in the fruit market' — that polite society would avoid.
MK Simcha Rothman, Min. Yair Levin and judicial reform
Rothman's incisive book accused the court of crossing the line from what the law says to what the judge thinks, and from what the elected representatives of the people legislate to what the personal agenda of the justices dictates.
He then entered politics, joined the Religious Zionist party, was elected in the November 2022 elections, and then assumed, no less, the Chair of the Constitution, Law and Justice Committee of the Knesset.
He vigorously launched, in cooperation and working closely with the Minister of Justice, Yair Levin, a major reform proposal to alter the institutional balance of power between the Knesset and the judiciary — including ancillary investigative bodies, the State Attorney Office and the Ministry of National Defense [the Police].
-One of the central goals of the reform is to allow government ministers to appoint their legal advisers unhindered by court intervention.
Ubiquitous partisanship had showed up at every turn, as when Amir Ohana former Likud Minister of Justice faced imperious legal advisers who blocked his right to appoint personnel to his staff.
The appointed adviser, as in other cases, rolled out legalisms and interpretations to prevent the intent or policy of the elected public representative.
When something must be reformed as José Ortega y Gasset wrote in "The Revolt of the Masses" (1932), this means that "it's indispensable and that it is capable of new life."
The procedure to nominate new judges in Israel involves a nine-member committee composed, in particular, of serving high court justices and members of the Parliament:
There is no political discussion of the candidates, with no executive or legislative involvement, supervision, or approval process. Standing judges appointing new judges cannot but be suspected as a pathway for judicial nepotism.
When Aharon Barak, as president of the Supreme Court, led the veto charge against the selection of Professor Ruth Gabison to the court because she had "an agenda" –– obviously not his activist legal doctrine — he proved that indeed, in his own words, the court was like "a family."
It's no secret that a certain pattern exists for concerning the cooptation of judges through collegial ties and family connections at all levels of the court system and not only at the Supreme Court echelon.
None other than the internet site of the Judicial Branch (Ha-Reshut Ha-Shofetet) publicized information on this sleazy subject.
Karl Mannheim wrote in "Ideology and Utopia" (1936) about the tenacity of ideology to color the outlook of people.
Especially a group holding power and "interest-bound to a situation that they are simply no longer able to see certain facts which would undermine their sense of domination."
It appeared that the Supreme Court justices were in such a state of mind.
The reform measures proposed by the Likud Minister of Justice seek to rein in the three decades-long activist court, insert political balance to temper its leftist leanings, and open its ranks to ideological and ethnic pluralism.
One of the most glaring deficiencies is Ashkenazi domination almost to a monolithic strain, with but one serving Sephardi justice out of fifteen in total.
The decline of public trust in the Supreme Court is a clear sign that something is terribly awry in the judicial branch of government.
According to a research study conducted at the Hebrew University, public trust fell by 30 % from 1991 to 2022; the years marked by Aharon Barak's "constitutional revolution" that claimed to fill the vacuum left by the absence of a written constitution.
The Israel Institute for Democracy earlier in 2020 presented comparable survey findings, that half of the Jewish public considered the leftist slant and the activist bent as reasons for the court's loss of credibility, or legitimacy.
The idea had surfaced that "the Deep State" in all its parts — the court, the prosecution, the senior bureaucracy, mainstream media, and university academia — had effectively emasculated the power of the executive branch of government and annulled the results of democratic elections.
The proposed reform includes a provision for the Knesset to override a court cancellation of a law or a governmental policy:
In democratic Canada, a "notwithstanding clause" is employed (infrequently) by the executive branch in tandem with the legislature to preempt a judicial review that portends the nullification of parliament's authority.
Nevertheless, the reform package in Israel requires buttressing checks on the government but without curtailing its capability and responsibility to govern effectively.
Finding the right fit to insert a square peg into a round hole is the creative challenge for all parties to the political quandary.
The trial of Binyamin Netanyahu on charges of corruption and a 'breach of trust', itself a rather spurious notion in a court of law, further unearthed mistrust in the judicial system:
Since May 2020, proceedings have exposed an array of disquieting tales about unconscionable harrowing practices of interrogation and false evidence submitted by the prosecution.
The trial against Netanyahu has led some commentators, admittedly from among his supporters, to believe that Israel's deep state itself is on trial and that the finale will prove that.
As such, the prime minister's alleged criminal felonies — like accepting unreported excessive gifts and favors from private persons — may ironically turn out to contribute to the further erosion of the court's authority and reputation.
The left's political and legal campaign to unseat Netanyahu and stain his public standing has become the mainstay of its raison d'être since he first took office in 1996.
In recent election campaigns, the left parties incessantly chanted "Just Not Bibi" as their singular political slogan.
Alas, after defeats and recoveries, Netanyahu is again the sitting prime minister, a virtual political phoenix returning from defeat and rising back to power.
He is the so-called "magician" (ha-kosaim), surprising in unforeseen ways, and mounting a political career that has become the pivot of Israel's story for decades.
While his record includes impressive achievements in the economic and diplomatic domains, other issues remain unresolved.
The November elections, particularly from the viewpoint of the Likud-led nationalist camp, highlighted problems of domestic Arab violence and the possession of illegal weapons, the lack of governance in the Negev infested with Bedouin crime and violence.
Personal security was vulnerable throughout the country.
When the political dust settled, and Netanyahu successfully formed a 64-member majority government at the close of 2022, an unforeseen political storm struck Israel.
The scene: Supreme Court justices walk solemnly in measured steps into the courtroom.
Their black gowns convey gravity, decorum descends upon the hall, a crown of privilege adorns their heads, a halo of sanctity hovers above.
The judicial guild is in its element and the lawyers in the court address them with the titular respect "your honor."
The chief justice earns a monthly salary twice the amount paid the prime minister of Israel.
Naturally, the court wants to preserve the status quo in all its parts.
So too the state prosecution and attorney general, the legal adviser to the prime minister and the other advisers to the various ministers, believing their role is to assure law in the land, justice for all.
But the Levin legal reform package, supported from above by Netanyahu and presided over in committee by Rothman, threatens to turn the clock back to the era when the government governed, the legislature legislated, and the court resolved conflicts.
This sounds like a prescription for normative democracy; for the judges and their supporters this is a revolution or putsch in the offing — and an end to democracy!
The political birth pangs of a new (-old) order have been tumultuous.
Opposition to reform exploded and spread: mass Saturday night protests in Tel Aviv, streets blocked, high-tech employees and architects on brief strikes, with protest petitions signed by economists, lawyers, and university professors.
Leading opposition politicians, the likes of Benny Gantz, Moshe (Bogy) Yaalon, and Yair Lapid, raised the cry for — or warning of — civil rebellion.
Most outrageous was Yair Golan, a former and defeated member of Knesset — no less a deputy Chief-of Staff of the Israel Defense Forces — raising the portent of the imminent Nazification of Israel!
A comparable heinous remark was that by former-Prime Minister Ehud Barak, criticizing the efforts of mediation by President Yitzhak Herzog as likened to Chamberlain's capitulation to Adolf Hitler.
Some called for stopping to pay taxes; others voiced forebodings of Israel's international isolation; another actually threatening Netanyahu with murder.
Banks would collapse, money will leave the country, and thousands of Israelis would flee.
Was this mass psychosis, deep despair, a children's tantrum, prescient forecasting, or something else? No one could explain why judicial reform would wreck the economy — though the much-publicized chaos in Israel could.
Was this the end of Israeli democracy — just because of a new formula for choosing judges and appointing legal advisers? Something was surely amiss in the Holy Land.
Perhaps an invisible hand launched, directed, and is financing the anti-reform protest which in its intensity, rhetoric, and scope, was beginning to look like and sound like a concerted effort to subvert the democratically-elected government of Israel.
Beginning in January, the boisterous demonstrations, not only in Tel Aviv but also in Haifa and Jerusalem, as well as elsewhere, featured posters labeling the government 'a criminal organization' and claiming that there is a choice between a dictatorship or a democracy.
The mobilization of elites and the organization of the masses, orchestrated with a constant media campaign, were the weapons to intimidate the government to capitulate, cancel the reform package and succumb to the percolating insurrection against Netanyahu.
While Israeli flags fluttered in the air in Tel Aviv, Palestinian ones also appeared among the crowd. Few were the popular media voices, one being Ayala Hasson on TV Channel 13, offering a sobering and balanced assessment.
However, in the words of novelist David Grossman at one of the Tel-Aviv rallies, "the hour of darkness" had descended upon Israel.
The oligarchic legal guild, headed by Chief Justice Esther Hayut who demanded the Knesset cease its work on the reform package, found voluble support from leading journalists and commentators — Ravid Druker (who foresaw blood flowing in the streets in order to stop the government), Bruchi Kra, Amnon Abramovitz, and others.
On the other side of the political spectrum were noteworthy media personalities, among whom were Amit Segel, Yaakov Bardugo, Yinon Magal, and Kalman Libskind.
The names, faces, and opinions of these journalists on both the left and the right were familiar to all Israelis who were following news and events.
Opposition to the legal reforms, but without the manufactured hysteria, could yet be the result of legitimate concerns for the structure and functioning of Israel's polity.
Aristotle's six regime forms do not have to be the definitive final word in politics, nor is it necessary to have the existing set of relationships between the politicians and the lawyers in office in Israel cast in iron.
Polls have shown that a majority of Israelis support some reform of the legal and judicial system. The Supreme Court is far from infallible, and Netanyahu — now in his sixth term of office — is not the embodiment of evil.
The party winner in elections is publicly obligated as best it can to implement election promises, and the party loser cannot dictate its program into government policy. The majority is right to rule, but a minority tyranny is illegitimate on its two counts.
The famous T.E. Lawrence (of Arabia) wrote in "Seven Pillars of Wisdom" (1926), that "Semites had no half-tones in their register of vision . . . Their thoughts were at ease only in extremes." Of course, he had in mind the Arabs with whom he lived and fought in the desert; but when we hear the word 'Semites' we think of the Jews.
The contemporary Israelis should heed Lawrence's observation when they dialogue with political rivals in seeking an acceptable judicial-legal formula to accommodate both sides.
Edmund Burke wrote in "Reflections on the Revolution in France" (1790) that, "A state without the means of some change is without the means of its conservation."
With the same wisdom of continuity in reform, Hannah Arendt advised also in "On Revolution" (1963): "innovations and changes remain tied back to the foundation which, at the same time, they augment and increase."
No one wants to eliminate the Supreme Court, and no one believes the Knesset is the bane of democracy.
In the end, Israel is alone responsible to formulate the kind of government and laws, to choose the persons and the procedures, best suited to serve the Jewish and democratic state.
At root, and at a deeper level of inquiry, modern Israel is still in search of its authentic self.
Meanwhile, there is no more critical task than to maintain peace among the Jews, between the elated winners in the recent elections and the sore losers.
The high pitch of vitriolic rhetoric by the left, translated into escalating actions and threats of massive public chaos, will not dissolve and disappear.
They show no sign of stopping.
The will, intensity, and the resources of the opponents to judicial reform are real.
Anarchy and violence are just around the political corner.
On the side of the government, the will to proceed and legislate the reform measures is also real. At a certain point in the flow of events, it will however be counter-productive to choose being right rather than being judicious.
Some compromise may be the only solution to hold back the descent into a complete unraveling of Israel. Reason and responsibility will hopefully triumph over all.
Dr. Mordechai Nisan is a retired lecturer of Middle East Studies at the Hebrew University of Jerusalem. His most recent book was "The Crack-up of the Israeli Left.
Reposted and edited with writer's permission from Newsmax.