Populists everywhere, take note: Court ruling – and the war launched by Hamas – may spell the end of Netanyahu’s drive to mutate Israel into an authoritarian state.
Under the cover of exploding shells and rumbling tanks, Israel’s Supreme Court chose New Year’s Day to make a mark on the global struggle over the nature of democracy, invalidating the main part of Benjamin Netanyahu’s misleadingly branded “judicial reform.” Specifically, it struck down a contentious law passed in July which had eliminated “reasonableness” as a concept in Israeli jurisprudence — a key part of the grand design to create an omnipotent government of the type enjoyed by Vladimir Putin and desired by Donald Trump.
Netanyahu’s stooges had warned the Supreme Court in the halcyon days before the Oct. 7 Hamas massacre that doing so would be a violation of norms, and the prime minister avoided promising he would respect such a decision. A constitutional crisis appeared to loom – even before the current existential one. It’s actually worth a brief examination – because the story reveals much about what is odd about Israel, and also about how populists everywhere shamelessly do crazy things these days.
The law in question was pass as a “Basic Law,” which is supposed to lend it special weight. Listening to politicians speaking with gravity and confidence, many might be tempted to believe that Basic Laws are somehow sacrosanct, and overturning them would be an extraordinary, confirming the claims of outrageous judicial “activism.” So it’s important to understand the actual situation in Israel, and how it compares to what happens in other democratic countries.
Israel lacks a constitution, because the religious parties won’t allow one, considering the Torah sufficient. This is dangerous, because constitutions are the best way to secure the rights of citizens and to ensure that a random parliament majority cannot abuse them. After all, why can the US congress not pass a law declaring it illegal to employ redheads? Because of the US constitution. Israel doesn’t have one, and the Torah is of no assistance, and there is also no law expressly disallowing it. That’s where “reasonableness” came in.
This aspect of the solution to blocking madness is familiar from many common-law countries – including England, Canada, Australia, New Zealand, South Africa, India, and Singapore and other places which like Israel inherited British law through colonization. It enables courts to weigh in during extreme situations: Did the government give weight to relevant considerations? Was the decision motivated by improper or irrelevant considerations (like nepotism)? Did it ignore primary considerations?
The other aspect has been, indeed, to enact semi-constitutional “Basic Laws”. The idea is that these laws offer guardrails against abuses, and subsequent laws cannot contradict them. That also is not, well, unreasonable. Other countries use this workaround, and one of them is no less than Britain itself, which some would claim is the mother of modern democracy. It too has no actual and formal constitution.
But in most such cases, a special majority is needed to enact quasi-constitutional laws, bestowing a logical legitimacy to the limitations they impose and reflecting a sort of broad consensus. Once such provisions exist, a special majority (perhaps two thirds of three quarters) is required to amend them, as with constitutions. That too lends the arrangement the possibility of permanence, and a genuine special status backed not only by assertion but also by practical reality.
In the United States, amending the constitution is very serious business, and the bar is almost impossibly high. Changes need to be proposed either by a two-thirds majority vote in both the Senate and the House of Representatives (or by conventions organized by two-thirds of state legislatures), then must be ratified by 38 out of 50 states. Because of this, a decades-old effort to declare equal rights for women actually failed to pass (the Republicans scuttled for good, it seems, just months ago – hard as this may be to believe).
Amendments to the German constitution can only be made if they are approved by a two-thirds majority in both the Bundestag (the federal parliament) and the Bundesrat (the federal council, representing the states). Japan requires a two-thirds majority in both houses. And so on. There are some exceptions, it must be conceded, for example in New Zealand. In that country, there is high social cohesion, and the respect for decency and public legitimacy is so profound that lunatic laws are unlikely.
In Israel, which is sadly not such a country, Basic Laws can be passed with regular parliamentary majorities, and in most cases can be amended the same way. That majority can be a 1-0 vote. That sole legislator can be any of the battalion of maniacs, racists and convicts that tragically abound in the chamber. The only thing that makes them “basic” is that they were declared as such. That’s really it.
The law in question, cancelling the “reasonableness doctrine,” was passed with a simple majority (the 64 coalition members who voted unanimously in favor including lemmings who knew it was wrong, versus 0, because the 56 opposition members walked out in protest).
Eliminating “reasonableness” was critical for the government to enable the mind-bending array of other laws and “reforms” they had planned. Beyond concrete plans to hand itself the exclusive right to appoint judges and also the ability to very easily overrule them, specific bills submitted by coalition members had aimed to:
- Enable the coalition to eliminate other parties from running without the possibility of judicial review;
- Forbid investigations of the prime minister and strike from the books two of the three charges Netanyahu currently faces in court;
- Hand indirect control of news channels to the government;
- Transfer powers from the regular courts to the rabbinical ones bound only by Jewish law giving supremacy to men over women;
- Enable the shutdown of any protest of any size if there is even one Palestinian flag in the crowd;
- Allow the Shin Bet to monitor teachers to suppress education to critical thinking and insurrection.
- Grant the multitudes of ultra-Orthodox Jewish seminary students – already widely reviled for their systematic draft evasion – formal and permanent clearance from the draft and financial benefits equivalent to those of soldiers.
Polls showed this was deeply hated and millions participated in nine months of mass protests. But many of the above-described outrages by now would have passed with the same simple majority – were it not for the Hamas attack which made voluntary and divisive outrage politically unsustainable. Yes – Hamas not only committed the greatest pogrom since the Holocaust, and not only brought incredible destruction upon the people of Gaza, but it also kind of saved Israel from destroying its own democracy and a possible civil war.
This is not a situation which commands great respect for “Basic Laws.” But Netanyahu’s mafia insists that respect must exist anyway, because the law allows such Basic Laws to pass, and pretending these laws are special is the “norm.”
The Supreme Court in Israel is allowed by law to strike down laws, whether they are declared “basic” or not. It is not surprising that this was the decision, as I foresaw on the day of the vote (see interview below).
And talk of norms is rather rich coming from the man who insisted on serving as prime minister while on trial for bribery. The law enabled that too, as did the decidedly non-activist Court – but it was certainly not the “norm.”
Critics say the 8-7 Supreme Court decision was too close – even though a reading of the written arguments shows even those voting against opposed the law, but were timid about the procedure and fearful of the politics.
And the critics’ argument ignores the similarly close nature of the Knesset vote in favor, which stems from the coalition’s essential nature. It came to power as a result of a tied Nov. 2022 election in which the opposition idiotically splintered and caused 6% of the vote – an eighth of its side! – to be invalidated, handing a small majority to Netanyahu. He proceeded with trademark hubris to act as if this was a mandate to create omnipotent government like in Russia and other fake democracies.
He ignored the warnings from far and wide – the heads of the security establishment, the opposition, leaders of many business sectors and Israel’s friends around the world – that the schism this created in Israel would damage it economically and threaten its security. Indeed, on Oct. 7 Israel’s enemies staged the worst attack on Israeli civilians in history. The government was preoccupied.
Its miserable days may now be numbered, but the Netanyahu government seems undeterred. In reaction to the Supreme Court’s decision Monday, ministers again are talking about “judicial reform” and how the people are split about it. It’s not true, of course: every poll shows huge majorities opposed to Putinizing Israel.
The level of mendacity and hypocrisy are stunning — unless one has noticed that versions of it are also noticeable in the United States. Israel — a little like Hungary and a few other countries — is the petri dish. That’s why it’s so important that the Supreme Court has struck back.
I have a proposal. I say let Israel’s government, as clueless as it is ambitious, carry out a real judicial reform. A useful judicial reform. I’d hate to deprive them of the opportunity altogether. You want a judicial reform? Change the ridiculous Basic Laws setup to require a supermajority to pass and amend them. The opposition will support it. Gaza war aside, there will be joy across the land and a light unto the nations.
That there’s your opportunity, after a year of recklessness and ruin, to do one single and solitary good thing.
