Save Israeli Democracy?

In cities around the world, including New York, Chicago, Miami, San Francisco, Los Angeles, Berlin, Munich, Oslo, Paris, Rome, and even Sydney, Australia, demonstrators opposing Prime Minister Benjamin Netanyahu’s proposals for judicial “reforms” have taken to the streets holding signs reading “Save Israeli Democracy.”  

Two of Netanyahu’s proposed reforms (which are arguably designed, at least in part, to keep him out of jail) are especially contentious and would have the most far-reaching effects. One affects how Supreme Court justices are appointed. The second permits the Knesset to override a Supreme Court ruling that strikes down legislation. While the demonstrators argue, and may be correct, that Netanyahu’s proposals are a threat to democracy because they give him too much power, they are wrong in how and where they are saying this. 

A bit of background. Israeli Supreme Court justices are appointed by a nine-member Judicial Selection Committee. At least five of its members (three Supreme Court justices and two Bar Association members) are themselves not popularly elected to any office. Since seven of the nine members of the Committee must vote in favor of a Supreme Court candidate, control over appointment rests in the hands of persons who are not popularly elected. Moreover, in its 1995 Bank Mizrahi decision the Supreme Court found the power to negate “unreasonable” Knesset legislation. The Knesset has no power to review that determination. Netanyahu argues that judges appointed in this fashion ought not to have such unfettered power. 

Netanyahu’s proposals would reduce to five the votes needed in the Judicial Selection Committee for a Supreme Court appointment and alter the Committee composition so that the elected ruling coalition has an automatic majority of Committee appointees. He would also enable the Knesset, by a simple majority vote, to override a Supreme Court finding of unconstitutionality. 

Although Netanyahu campaigned on these issues, critics argue that the proposed changes are undemocratic because they put all three branches of the government in the hands of the governing coalition. While this can be a risk, it is inherent in many parliamentary democracies (such as the United Kingdom) where there is no judicial power to oversee legislation, and the leader of the parliamentary coalition is typically the Prime Minister and head of the executive branch.

The divisions in Israel are so dramatic that checks and balances to legislative and executive excess are especially necessary. 

The more compelling critique of Netanyahu’s proposals is not that they are undemocratic, but too democratic, giving too much ultimately unreviewable power to the popularly elected Knesset and potentially permitting a tyranny of the majority (and the prime minister). The divisions in Israel are so dramatic — between Arabs and Jews, religious and secular, the political left and the political right, the pro-Netanyahu camp and the anti-Netanyahu camp – that checks and balances to legislative and executive excess are especially necessary.   

So although the demonstrators’ critique is wrong, they are right to be concerned. But in organizing worldwide demonstrations in opposition to Netanyahu’s proposals, the demonstrators are wrong in a fundamental way.  For example, the organization UnXeptable, which describes itself as a “grassroots movement launched by Israeli expats in support of a democratic Israel” and has chapters around the world, supports the worldwide demonstrations. Its Palo Alto founder, Offir Gutelzon, declares, “The foundations of Israeli democracy are being challenged” and “We call on Jewish Americans, and anyone who cares about Israeli democracy, to join us.” 

The call to “anyone who cares,” which is what the worldwide demonstrations are doing, undermines Israel and invites international intervention in its domestic affairs. Israel is a sovereign democratic state; how it chooses to organize its internal affairs is not a matter in which foreign governments should intervene. While Jews everywhere have a stake in Israel, to call for international pressure from non-Jews and from foreign governments is unseemly and dangerous, encouraging foreign governments to condition their relationships with Israel on how Israelis choose to govern themselves.   

So don’t demonstrate seeking to convince and involve foreign governments or non-Jews worldwide. Demonstrate in Israel or in front of Israeli consulates to influence the Israeli government. Argue in Israel and in Jewish publications the possible domestic repercussions when checks and balances are swept away.  But don’t damage Israel by bringing these arguments to people around the world.  Don’t invite non-Israelis and non-Jews, as the demonstrator’s signs declare, to “save Israeli democracy”.  Watch your words, and where you express them.

Gregory R. Smith is an appellate attorney in Los Angeles with the law firm of Lowenstein & Weatherwax and President of the Orthodox synagogue Westwood Kehilla.