The Truth About Israel’s Judicial Protests, and What You Can Do to Help
by Daniel Pomerantz
Contrary to popular narratives, the Israeli people are engaged in a historic and patriotic exercise of freedom and democracy. Some Israelis have raised valid complaints that Israel’s judicial system needs certain reforms, while others have raised equally valid arguments that the current government’s specific proposals would not serve Israel properly.
The result: hundreds of thousands of citizens (including families and children) have been taking to the streets in freedom and in safety. Visually, the protests are an ocean of Israeli flags, often including the singing of Hatikva, our national anthem. The speeches are pro-Israel, pro-democracy, highly supportive of the police and the military, and narrowly critical only of certain politicians and specific legal proposals.
What Can You Do?
If you are living abroad you might feel frustrated or even helpless, but here are three ways you can make a difference. This is true regardless of your political opinion:
- Write to the Knesset. Communicating really does make a difference, especially with respect to moderate MKs who may be “on the fence.” Contact information can be found for all members of Knesset (in English) at this link.
- Come to Israel! Buy a plane ticket, pick up a flag, and march in a protest. As we’ve seen this week, this kind of advocacy really does make a difference in Israel. (There are protests both for and against the proposed reforms.)
- Continue supporting Jewish and pro-Israel causes. Now more than ever: antisemitism has reached record levels worldwide, with violent attacks up by 167% in the United States while “anti-Zionism” is getting a boost from inaccurate international narratives about Israel’s protests. Israel’s government is funded by Israeli tax dollars, which means that reducing philanthropy will have no impact whatsoever on the government, but it will have a negative impact on Jewish communities worldwide, who are served by important nonprofits.
A Legal Analysis
In a classic episode of “The Simpsons,” Mr. Burns gets a medical checkup only to discover that he has literally every disease, yet somehow the diseases all balance each other and he continues to survive. Similarly, Israel (like any democracy) has some problems that need fixing, but if they are fixed improperly, it could upset a delicate balance.
Israel’s Basic Laws deal with issues like equality, human dignity, the structure of government itself, and basic freedoms: a kind of “substitute constitution.” Strangely, a Basic Law can be passed or overruled by a simple majority of the Knesset. This is unusual in democracies: for example an amendment to the United States Constitution requires a vote of 75% of the 50 state legislatures, also called a “super majority.” This is no accident: if a simple majority could change a country’s constitution, such a majority might pass a law prohibiting the opposition parties from voting, or eliminating rights for minority groups. Democratic government must be responsive to the will of the majority, but not without certain limits, or else the democratic system itself will not survive.
The unusual ease with which a Basic Law can be created or changed is balanced by Israel’s highly independent judiciary and its rigorous enforcement. Yet the judiciary has problems too: in most democracies, positions of legal authority are filled either by elected officials, or by someone who is appointed by elected officials, thus preserving accountability to the voters. For example, a US Supreme Court Justice is nominated by the president (who is elected) and confirmed (after very public hearings) by the Senate (which is also elected). Yet in Israel, judges are appointed by a committee that is effectively controlled by the Supreme Court itself. Furthermore, Israel lacks a set of rules to govern the judiciary’s exact powers, as the US Constitution does in America. The result is an entirely unelected, highly activist judiciary with unlimited legal authority and no accountability to the voters.
And here we have what I call the “Mr. Burns problem.” The proposed judicial reforms would indeed move Israel’s judiciary closer to the practices of most modern, Western, liberal democracies, yet it would also eviscerate judicial protection for Israel’s Basic Laws. Indeed, the present coalition has already proposed more than 100 bills, many of which would not pass judicial review. To preserve Israel’s democracy, any change to the judiciary requires a commensurate change to how Basic Laws are passed, modified, and enforced. Israeli President Isaac Herzog proposed such a compromise earlier this month, and though the coalition rejected it at the time, the massive protests have sparked renewed interest in potential compromises.
This week Prime Minister Netanyahu announced a pause in the push to pass the contested reform and a new interest in compromise. While we do not yet know what the future holds, one thing is certain: even in this, one of its moments of greatest turmoil, Israel remains a free and peaceful democracy, passionately beloved by its people, and a “light unto the nations.”
Daniel Pomerantz is the CEO of RealityCheck, an organization dedicated to deepening public conversation through robust research studies and public speaking. He previously worked as a lawyer in the United States, and as CEO of HonestReporting. Daniel lives in Tel Aviv, Israel, where he lectures at Reichman and Bar Ilan Universities. You can learn more about RealityCheck at: www.RealityCheckResearch.org.