האלפים בצומת קפלן
האלפים בצומת קפלןצילום: דוברות

"Given periodic, multiparty elections, why don’t the voters elect statesmen possessing enough courage, wisdom, and integrity to face the truth ………..” [Ariel ACPR 172 by Professor Paul Eidelberg]

“On February 23, 2023, Ehud Barak declared that historical experience has shown that when 3.5% of the population stubbornly persists in demonstrations and persists, the government either collapses or falls ………We should know the ‘kind of war on which we are embarking’ and deal with it accordingly”.

A video has emerged in which, three years ago, Ehud Barak actually gathered a select group of Israelis in order to plan a coup and suggested the Covid criisis as a way to bring down the then government through civil disobedience and protests, adding that there will be bodies of Jews killed by other Jews floating in the Yarkon River

Present day mainstream media, however, for the most part present the conflict as if the blame is on PM Netanyahu’s shoulders.

Over the years, there has been a frequent call for judicial and electoral revision. A few examples:

“Electoral Reform for Israel; A Realistic Proposal”[ 1988]

“Facts about the Israeli System of Government “[2003]

“Israel’s Election System Is No” Good [April1, 2009]

“The secret behind Israel’s dysfunctional political system” [Jan 23, 2013]

“Is Israel a true democracy? “[May 15, 2014]

“Judicial Reform Will Remain on Israel’s Agenda Even after Netanyahu Leaves Office”. [June 12, 2019]

Of the numerous documents, newspapers, magazines and journals, the Council on Foreign Relations “Israel and the debate Over the Role of the Judiciary in Democratic Government” by Elliott Abrams provides a composite, explicit and unbiased view of the subject matter. He wisely asserts that “the Israeli debate on judicial reform involves issues unique to that country’s political system, but also raises questions that every democracy must address”.

What are the proper powers of courts and of elected institutions in democratic systems of government?

“A few examples will demonstrate that each democracy works differently," he states.

For a thorough analysis, Abrams compares the United States, Canada, the United Kingdom, and Israel. At the outset, one must recognize that lack of a written constitution is rare in democracies, although both New Zealand and the UK have none. Robert Blackburn, professor of constitutional law at King’s College, London, explains:

The Constitution is a document of fundamental importance setting out the structure of government and its relationship with its citizens. “All modern states, saving only the UK, New Zealand, and Israel, have adopted a documentary constitution of this kind.”

The Constitution and Supreme Court in the United States.

In the United States, limits on power of the majority are extensive and formal [rather than based on tradition or unwritten rules]. Power is divided between the federal government and state governments, and in the federal government among the 3 branches. Rules are set by the written constitution, which requires the agreement of 3/4 of the states and 2/3 majorities in both houses of Congress to amend.

The president can veto legislation and there is an override of the veto, which requires a 2/3 vote in both houses of Congress. The Supreme Court can strike down legislation as unconstitutional, and its ruling is final, but justices are themselves chosen by the political branches: they are nominated by the president and require Senate confirmation.

Most of this could be put into effect by legislating basic laws, without a constitution.

The Supreme Court in Israel.

The key figure in Israel’s “constitutional revolution” that expanded the role of its Supreme Court is Aharon Barak, who served as a member of the court from 1978 to 1995 and as its president from 1995 to 2006. In a 2011 law review article about Barak and the court, 2 Israeli scholars concluded that “the drop in public esteem of the Supreme Court had much to do with Barak’s emphasis on judicial discretion."

"In the eyes of the public, the justices, who were not elected by the Israeli public, were using [subjective] discretion and their personal ‘agenda’ to intervene in the defense and economic policies of the elected arms of government – the Knesset and the cabinet. “

Judge Richard Posner, who served on the US Court of Appeals for the 7th Circuit, wrote in 2007 that “what Barak created out of whole cloth was a degree of judicial power undreamed of by our most aggressive Supreme Court justices.”

It is under Barak that there evolved no need for standing in Israel - anyone can file a suit against someone, even if he is not directly involved - and he famously said that everything is considred judciable, whether or not the courts have expert knowledge of the subject, thus deciding on military, medicinal, religious and other matters by using standards ignoring claims of experts in the partiular fields.

From Israeli judge, Moshe Golan, we learn that the constitutional structure in Israel is not complete and is therefore a vulnerable structure. However, it is not only that the State of Israel does not have a constitution , but its absence caused a situation in which the Supreme Court determined in its rulings – and still determines – the missing parts of this structure, while assigning itself a central role in deciding constitutional matters.

By Way of Closure:

[1]The Key Judicial Reforms Tearing Israel Apart [May 23, 2023 – by Amy E. Schwartz]:

If you look at the way the system is designed, it’s amazing that Israel took until now to get to this crisis. Israel is not the only system in the world that has proportional representation without districts, but when people talk about proportional representation verses other systems, that is one of its drawbacks. So a lot of these different layers and checks that are present in other parliamentary systems don’t exist in Israel.

Finally, there is the absence of a constitution. If Israel had a constitution or passed Basic Laws that clearly laid out different rights and responsibilities, both in terms of the different branches to each other – what we would call horizontal accountability – but also that set out rights like a bill of rights – which we would call vertical accountability – that would mitigate some of these problems.

[2] Israel’s Proposed Judicial Reforms Aren’t “Extreme” [January 29, 2023- by Richard A. Epstein]:

Hundreds of Israeli economists signed an “emergency letter” on Jan. 25 warning that Prime Minister Benjamin Netanyahu’s proposed judicial reforms will lead to economic calamity for the country. The authors worry about putting “great political power in the hands of a ruling group without strong brakes and balances.”

Irony! Many of these economists supported political parties that opposed Mr. Netanyahu’s free-market reforms while he was finance minister from 2003 to 2005. Netanyahu's reforms have allowed the country’s economy to boom for almost 2 decades.

Israel’s unelected Supreme Court – not the Knesset, its elected parliament – is the branch of government that actually holds unchecked political power. Rather than endangering economic growth, present day proposed judicial reforms provide a necessary check on the one court in the Western world wih nearly unlimited power to dictate economic and political life (In fact, many foreign investors sign on contracts with Israel out of the Jewish State because of the Supreme Court's subjective decision that the words of a contract are less binding that what the signers meant to say, ed.).

The economists mischaracterize Mr. Netanyahu’s proposed reforms as an attack on the independence of the judiciary. But judicial independence does not mean a judiciary independent from constraints. As it stands, the Israeli Supreme Court’s dominance over the Knesset is unrivaled by any other parliamentary or presidential system.

[3] Has the Israeli left lost its mind? [February 21, 2023-by Jack Engelhard]:

Apparently, these protestors are Leftists first, Israelis second. Here in America you’re thinking -----they’re like that over there, too? Impossible. Yes, Leftists are Leftists, same everywhere. As if Israel doesn’t have enough enemies to cite the latest Biden betrayal at the UN, a time when Israel should rally as one and indivisible.

I did not foresee the coming of a 13th tribe, Liberal/Leftists. Nor that they’d be frothing at the mouth just so. Their anger against any changes being made, or even suggested, is proof that the High Court is their Daddy. It’s where they go for assurance that many pro-Israel measures being passed by a Conservative Legislature will be overturned by a Liberal High Court. But sensible jurists everywhere agree that in Israel it’s the High Court that has run amok. Time, they say, to curb the High Court from its excesses.


And on another note:

If the Reformers are truly interested in giving meaning to the word Democracy, they share with their opposition a serious omission. Evelyn Gordon is unquestionably amongst the leaders in the field of Judicial Reform and Democracy. In the body of her, “The Need for Judicial Reform Isn’t Going Away” [28/03/2023[, we find the words, “I further agree that judicial reform alone isn’t enough to fix the problems with Israel’s elected branches; that is why my essay also argued, for instance, that Israel needs to introduce direct elections for MKs in order to make them more of a counterweight to the executive.”

Dov Lipman’s, “Agenda item for the next Knesset” was published as far back as 7/04/2019. His introduction, “The average Israeli has no say about who represents them, and that’s not only a shame, it’s a failure in democracy. (Only three parties have primaries: Likud Labor and Religious Zionism - the other Knesset candidates are handpicked by party heads, ed.}

He writes, “The changes that are needed can be divided into 3 primary categories: regional representation, raising the electoral threshold, and the separation of powers-------The fact that people throughout Israel do not have their own Knesset representation, beholden and accountable to them, means that the Knesset doesn’t truly represent the will of the people.”

This, however, needs a complicated solution to ensure fair representation in a country with religious and non-religious sectors spread throughout every region..

In the words of Yoram Ettinger, a former minister for congressional affairs at Israel’s embassy in Washington and an expert on US-Israel relations remarked back in 2021, “Israel’s political system is a dysfunctional and self-destructive system from its inception.”His bottom line, “First and foremost, a better system is needed, which introduces accountability by members of Knesset to their constituents. Right now, the Knesset members are accountable to their party leaders. The existing system disarms voters completely and renders them irrelevant between election campaigns.” As it happens, religious party Knesset members are accountable as they serve a specific sector and their voters expect them to live up to campaign promises if they expect to be voted for again.