Prof. Sam Lehman-Wilzig – Judicial “Reform”: Israel’s Right-Wing Forever?
The Israeli Government’s so-called Judicial Reform holds within it a likely, future, revolutionary scenario that isn’t on the public’s radar. First, some background to understand how and why this could play out.
There is one element in this saga that many on the Right and among the Center-Left opposition are worried about (for different reasons): the proposed law regarding the Committee for Judicial Appointments would give the governing coalition an absolute majority to choose judges – at the least the first two for every new government, and possibly more than that.
The Center-Left is deeply troubled by the clear politicization of Court judges. In their eyes, not only will this lead to non-objective judicial rulings but also undermine trust in Israel’s Court system. (It bears noting that while such trust has declined in the past decade, it is still much higher than trust in the Knesset!) The Right are concerned too: if and when they lose a forthcoming election, it will be the current Opposition that will get to choose the judges, and if the Court is already politicized (by then), the new judges will be even more “activist” than today.
However, in theory – and potential practice – the governing coalition could avoid a future election loss “forever”, thus negating any future switchover of judicial “allegiance”. In other words, the threat to Israel’s democracy is far greater than is being bandied about. I call this huge potential danger to Israel’s democracy the “A-Bomb”. What does the “A” stand for here? Read on…
Like most democracies, Israel has some minimal principles for the right to stand for election. These standards are enshrined in the Basic Law of the Knesset. Most relevant to the Judicial Reform’s potential democratic catastrophe is Paragraph 7a: “A list of candidates will not participate in the Knesset elections and no person will be a candidate in the Knesset elections, if the goals or actions of the list or the actions of the person, as the case may be, explicitly or implicitly, contain any of the following: 1) Denial of the existence of the State of Israel as a Jewish and democratic state;…”
This is reasonable, because democracy has to defend itself against direct threats to its very essence, regardless of how it chooses to define itself. However, it should be noted that paragraph 7.a.1 is worded in the negative – only those that explicitly deny Israel’s Jewishness and democracy cannot run.
Now let’s look at the present government and what it might (probably would) try to change here, recalling the controversial Jewish-Nation-State Bill passed a few years ago. Ben-Gvir, Smotrich, and many of the extreme right-wingers within the Likud could easily demand a “minor” change in the text: instead of the negative wording, turn it into a positive one, something like: 1) Do not explicitly accept the existence of the State of Israel as a Jewish and democratic state.
This would not seem to be an important semantic change. What substantive difference could it make? In fact, a huge one, because the Arab parties (perhaps excluding RAAM) could not accept such a stipulation. As long as the Arab parties feel that they are the victims of structural discrimination because of “racism” resulting from their not being Jewish, it’s one thing to be asked to remain silent about the state’s Jewish character, but active acceptance of the state’s Jewishness is not something they would be willing to countenance.
Therefore, if the Arab parties were prohibited from running for the Knesset (the A-Bomb: “A” as in Arab), there is no chance at all in the foreseeable future (and probably forever) that the present Center-Left could return to power! As it is, they can barely scrape together a majority of MKs, even with the Arab parties passively supporting such a coalition from the outside. Without the 4-6 seats of the “Arab Union” in such tacit support of the Center-Left, the Right-wing coalition would probably get to rule for the indefinite future.
In that case, the Committee for Judicial Appointments will continue to select “right-wing” anti-judicial activists, thus negating any role the Supreme Court would have in protecting civil rights in the face of governmental administrative actions and political legislating, even if the present draft law negating judicial review outright was not passed. Indeed, the blow to Israel’s democracy here would be double: not only a significant part of Israeli society (most Arabs) would be removed from the democratic game, but the substance of democratic civil rights would come under serious threat. All this is a distinct possibility given the ruling zeitgeist in the current governing coalition.
However, to be fair, there is one thing that could undermine such an effort by its more extreme elements. As is well known, just as the Center-Left cannot form a government without at least the tacit support of the non-Zionist Arab parties, so too the Right cannot form a government without the non-Zionist, ultra-Orthodox parties. Would the latter support a change in the Election Law wording that would mandate them as well to actively support the democratic nature of the state?
We have already heard Smotrich and Maoz (of the nationalist Orthodox) state that their ultimate goal is a Jewish state based on “Torah Halakha” (whatever that is; certainly not “democratic” in its modern meaning). The ultra-Orthodox might well feel that from a theological standpoint, that’s one step too far. On the other hand, they have proven time and again that political expediency is their middle name – in this case, holding their nose or crossing their fingers behind their backs as they swear allegiance to “democratic” Israel. For the ultra-Orthodox, the ends (staying in power) almost always justify the means.
It would be highly ironic if the non-Zionist parties in the governing coalition refused to go along with what the non-Zionist parties on the Left also found abhorrent. But can mainstream Israel rely on such a possibility? Very few would want to bank on that happening. Thus, the very scary scenario pictured here of a seemingly “minor” change in the election law should be enough by itself to stop the hyper-politicization of the Judicial Appointments Committee. Israel’s democracy should not have to depend on the good graces of some of its most extreme, anti-nationalist, political elements to ameliorate the undemocratic laws of their more “moderate” coalition partners.
