When Israel was born as a modern Jewish state 75 years ago, its declaration of independence said that “it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.”
For 75 years those rights and protections under law have been safeguarded by an independent judiciary, a judiciary established by the Knesset, the Israeli parliament, for as like in Britain, home of the original Parliament, there is no written constitution in Israel.
But the lack of a governing document in either the U.K. or Israel doesn’t mean that their courts lack integrity and accountability, as courts can be true and impartial without a written constitution. Conversely, even here, home to the world’s oldest written constitution, our highest court’s recent actions have caused many Americans to question it, both on decisions and the ethical behavior of its justices.
Which brings us to the fight in the Knesset chamber in Jerusalem and in the streets of Israel, as Prime Minister Bibi Netanyahu has used his narrow majority to push through a bill to undermine the independence of the Israeli Supreme Court and its 15 judges.
The measure, passed with 64 votes as all 56 members of the opposition boycotted the roll call, revokes the high court’s power to overrule government actions found by the judges to be “unreasonable in the extreme.”
Netanyahu and his allies argue that the democratically elected Knesset should not be second guessed by unelected judges who are appointed by the apolitical president from a list compiled by a broad-based committee. As the Knesset is elected by the whole of the public, it should not be subservient to such a court, goes the thinking.
But that is the entire idea of an independent court system; that it doesn’t take its orders from the ruling government of the day. The Israeli Supreme Court is accountable to its prior decisions and the concept of judicial review, first established by the U.S. Supreme Court in 1803, which lets a court knock down laws that violate the fundamental rules of a society, like those rights written into the Israeli declaration of independence.
Netanyahu feels he had to do this to satisfy his coalition, but fooling around with the courts is not a sign of political strength, but weakness, blaming judges who are duty bound to follow the law.
Israeli democracy remains robust and the hundreds of thousands protesting should challenge their energy into votes at the next election. What this Knesset does, the next Knesset can undo. That assumes the new bill survives a judicial challenge.
Netanyahu has won the day, but he says he’s not done and wants to give politicians greater say in selecting judges, which sounds like another bad idea.
Passing this bill doesn’t end the matter. Israel’s main labor union, Histadrut, said after the vote that it was looking at perhaps calling a general strike, shutting down the country in protest.
Netanyahu had the 64 votes he needed, but may have created more problems than he thinks he solved. Not so smart for an MIT grad.
