Weiler, Joseph H. H.

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Israel: Cry, the Beloved CountryJoseph H.H. Weiler 2023-02-01T13:10:39Israel, like many other democracies today, is a deeply polarized society. Theoperating principle of public discourse is typically: “Art thou for us or for ouradversaries” (Joshua 5:13). Whether it is the never-ending Arab-Israeli Conflict andthe 55-year Occupation of the Territories (even how to call them both is a divisiveissue), or questions of church and state resulting from Israel’s self-definition asJewish and democratic, one could predict with unerring certainty whom one wouldfind on either side of the verbal, political and at times physical barricades. In recenttimes, the figure of Mr Netanyahu and the legal woes he is facing have deepened thepolarization.It is thus telling that, in the recent eruption in response to Netanyahu’s newgovernment plan to reform the judicial system, not only have the protestors’ numbersrisen to an unprecedented scale, but one finds both in Israel and in the Jewishcommunities around the world, prominent figures and many individuals – card-carrying Zionists of a center/right conviction – whom one would never expect to seeon the anti-government side of the current  barricade. Even the former President ofthe State, a lifelong Likud member alongside many others of the Menachem Beginold guard, have publicly expressed deep concerns. In the international arena, too,longtime friendly and supportive states are shifting sides.It should not come as a surprise. For there is a widespread (and not entirelyunfounded) perception that the government plan, outlined by the newly mintedMinster of Justice, is the Israeli January 6th. The widespread revulsion in the US andelsewhere at the January 6th insurrection was not fueled by the unruliness or evenviolence of the events. It was fueled by what was perceived as an assault on thecore values and institutions of American democracy. And that same feeling, sharedeven by staunch “Israel for better of worse” defenders of the State, is present in theobjections to the proposed reform: An assault on the core values and institutions ofIsraeli democracy. (One would be remiss in thinking and writing about democracy inIsrael not to face the serious and vexed issues, predating these reforms, resultingfrom the long term Occupation by Israel of Palestinian territories. But that will have towait for another day.)As a measure of the state of alarm, in an unusual step for a sitting Chief Justice,the current incumbent recently gave a speech in a professional forum but broadcastlive on Israeli media. She expressed the views of many, including some of the mosttrenchant and sober critics of the Court: What is masquerading as a “Reform” plan,is, both in intention and effect, a plan to shatter some of the most fundamentalfoundations of the separation of powers and the rule of law, without which no Statecan legitimately claim to be democratic.For lay persons, the four principal suggested reforms (and there are more to come, ithas been announced) may seem innocent enough: Making all judicial appointments- 1 -a privilege of the government in power (well, isn’t that the case in the US andelsewhere?); requiring a supermajority of judges to strike down parliamentarylegislation (not, on its face, an unreasonable proposal), but then also allowingthe Parliament to override – even by a majority of one – constitutional decisionsof the Court (do Canada or Finland not have similar override provisions?); and,finally, prohibiting the judiciary from using the criterion of ‘unreasonableness’ oreven extreme unreasonableness when scrutinizing actions of ministers and publicservants (isn’t that a mere technical issue, grist to the mills of law professors?).So what about this “whataboutism” argument that there are parallels to the proposedmeasures in well-respected democracies? The Princeton Scholar, Kim Scheppele,discussing Hungary, called this argument the Frankenstein syndrome. You take a legfrom this country, a hand from another, and a nose from yet another, and you endup with a creature which exists nowhere else and would be acceptable in no countrywhich claims democratic credentials.The cumulative effect of the planned reform is to dismantle fundamental features ofthe separation of powers and of checks and balances. By removing various judicialand legal checks designed to prevent a legislature, even if democratically elected,the reform would establish a “tyranny of the majority” and allow the executive branchto take measures, employing the police, the taxman and all other administrators,which are subject to fatally weakened judicial scrutiny. Particularly at risk areprotections of individuals and minority rights.Rules alone do not define a democracy: Political culture and democratic normativehabits play an important role too. The proposed deep politicization of all judicialappointments, compromising directly or indirectly judicial independence, is allthe more alarming in the eyes of the critics for the implications in the governingcoalition. This particular government is dependent on partners, holding key sensitiveministries, whose (overtly racist and supremacist) agenda and declared policies  areway beyond the political consensus. Indeed, these partners’ policies were anathemato all Israeli governments, both left and right, as recently as two or three years ago.They will now have a free, or freer hand to pursue their agenda, in some instancesperhaps irreversibly. The direct attacks from the highest echelons of the governmenton senior civil servants, such as the Attorney General, are already evidence of thislicense.The deep roots driving the judicial reforms is the sense that the Center-Left, havinglost power in the democratic arena, is imposing its values through the legal systemwith judges acculturated within that liberal worldview and dominated by the non-Sephardi elites. And make no mistake, the Israeli legal and judicial system, likemany others, is far from perfect. Its critics from the Left and Right have been in noshortage, both in academia and the legal establishment itself. To give but a fewexamples, the very basis of judicial review of legislation in a State which has noformal constitution is problematic. And, for example, the range of issues which theIsraeli Supreme Court considers as justiciable is wider than anywhere else, involvingit in deciding issues better left to the political arena. The composition of the Courtin identitarian and ideological terms does not adequately reflect Israeli multiculturalsociety. And the list does not end here. All these criticisms and others are not without- 2 -merit. There is, thus, much to fix. A judicious and balanced reform of the judicialsystem would have broad support.But the scorched earth approach reflected in the current proposals is no less,and perhaps even more, perilous than a mob storming a parliament. The fact thatenemies of Israel (and there are many) will jump on the bandwagon should notprevent lovers and supporters of the State from raising their voice.- 3 -

Israel: Cry, the Beloved Country

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Israel: Cry, the Beloved Country

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