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September 10, 2023
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WHY ISRAEL WAS NEVER SO DEMOCRATIC IN THE FIRST PLACE

By
Dahlia Scheindlin


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Published July 29, 2023
Updated July 29, 2023, 5:14 p.m. ET
Some of the many thousands of protestors in Jerusalem after the Israeli Knesset
(parliament) passed the first part of a series of laws aimed at weakening the
powers of Israel's Supreme Court. The demonstrators believe the maneuvers are
illiberal and anti-democratic. ZUMAPRESS.com


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This year has made a mess out of Israel. In January, Prime Minister Benjamin
Netanyahu’s right-wing government announced plans to reduce the independence of
Israel’s Supreme Court. For seven months, massive demonstrations have swept the
country, blocking both the legislation and the streets, at points bringing
Israel to a standstill.

Over 10,000 army reservists have announced their refusal to serve and high-tech
companies have spirited tens of millions of dollars abroad in protest. Yet this
past week, the government passed its landmark bill to weaken the Supreme Court,
nearly spinning the country out of control. 

It would be easy to pin Israel’s current chaos on Netanyahu and his cabinet,
composed of an unprecedented combination of ultra-nationalists and religious
extremists — and led by a hamstrung prime minister standing trial for
corruption. But Israel’s democracy crisis didn’t begin with the judicial
overhaul of 2023. Its roots are as old as the nation itself. 

To understand Israel’s past, start with the present: the Netanyahu government
insists on constraining a judiciary it believes has overstepped its bounds. The
right wing argues that Israel’s unelected Supreme Court slaps down legislation
and government decisions with impunity. The court, they say, tramples the will
of voters while imposing a left-wing agenda on Israel’s right-wing majority. 

Facing corruption charges and massive nation-wide protests, Israeli Prime
Minister Benjamin Netanyahu is enduring the most challenging period of his near
two decades-long rule.ABIR SULTAN/EPA-EFE/Shutterstock

Defenders of democracy, meanwhile, view Israel’s judiciary is the sole
institution defending civil rights and basic freedoms. As they see it,
Netanyahu’s populist governments have advanced illiberal, anti-democratic
policies that force citizens to seek protection through the Court.  And without
a formal constitution to fall back on, that court provides the only checks on
executive power between elections (of which Israel has many).

What the current protest movement gets wrong is that Israel never truly
committed to being a liberal democracy in the first place. And both left and
right-wing governments share the blame. 

The “who started it” accusations over the role of the Court are merely a symptom
of Israel’s real procedural problems. Chief among them is that lack of a formal
written constitution, which has left both sides unable to agree on the division
of governmental powers. Those on the right believe the Supreme Court usurped
power from Israel’s parliament in the 1990s, when it ruled that it had the
authority to overturn laws (23 of which have since been affected). 

Israeli police disperse protesters blocking road to parliament ahead of crucial
vote

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In truth, the Court was interpreting two of what Israel calls its Basic Laws —
passed by legislators in 1992 under a Likud-led right-wing government much like
Netanyahu’s today. Those laws define fundamental — a k a “American-style” —
rights such as life, liberty, property and freedom of vocation. Essential,
democratic liberal stuff. 

The problem is that no authority ever made clear the powers these “Basic Laws”
possess — only that they were supposed to form the basis of a future
constitution that Israel has never actually written. Of course this piecemeal
stand-in for a formal bill of rights is better than nothing. Better still would
have been an actual constitution establishing equality for all citizens, while
fully defining the separation of government powers.  

So why has Israel, one of America’s closest allies and, many argue, the most
robust democracy in the Middle East, failed to develop a constitution that could
have likely prevented its current existential conflict? Because Israel’s vaunted
first prime minister, David Ben-Gurion, didn’t want one. Most Israelis see
Ben-Gurion as the mythical father of the nation, and the gold standard for
assessing leadership today. 

Israel’s first Prime Minister David Ben-Gurion in an image from 1948.
Ben-Gurion, long considered the gold standard for Israeli leadership, may have
ruled from the left, but was responsible for key anti-democratic policies
INTERCONTINENTALE/AFP via Getty Images Protestors in Tel Aviv demonstrate
against Netanyahu’s judicial reform efforts by shutting down a main highway out
of the city. AP

But to realize his greatest achievement, Israeli independence, Ben-Gurion paid a
heavy price, namely caving into demands by his religious Jewish political
allies, who wanted the least possible separations between synagogue and state.
Despite being lionized by the left, it was Ben-Gurion who allowed Judaism to
assume outsized control in public and private spheres, and insisted that the
state rule over its Palestinian minority, who are Israeli citizens, through a
military regime for two decades.

Yet somehow many view this as the country’s most democratic era. 

Things have changed, but democracy in Israel remains pockmarked. When the
right-wing Likud Party took power in the late 1970s, it claimed liberal ideals —
including the desire for that constitution. 

The civil unrest extended to Israel’s capital, Jerusalem, where anti-government
crowds railed against the government. ZUMAPRESS.com

But the Likud was also passionate about territorial expansion, Jewish
settlements, and Jewish nationalism — all of which corroded democracy. Israeli
settlers in the West Bank live under civilian law, while their Palestinian
neighbors are ruled by Israel’s military.

For a party that professed to support democracy, could there be anything less
democratic? But again, who really started it? After all, Israel’s “left-wing”
governments began the occupation following the Six-Day War in 1967 and governed
during the first decade of the settlement project. 

By the time Israel took baby steps towards liberalism in the late 1980s and
1990s, the country had tolerated undemocratic practices for so long that they
appeared almost normal. And both left and right-wing leaders are guilty. Yes,
Israel’s current government may seek to roll back a slew of civil rights. But
what Israelis view as the left has its own paper trail of curbing basic
freedoms.

Israel’s Supreme Court in Jerusalem. Because Israel lacks a formal constitution,
the Court is the sole government institution tasked with containing the nation’s
executive powers.Getty Images Inside the Knesset, or Israel’s parliament, where
the vote to curtail the Supreme Court’s authority passed earlier this week. ABIR
SULTAN/EPA-EFE/Shutterstock
40
What do you think? Post a comment.

Today’s protesters are noble, but historically handicapped.

Long before Netanyahu’s Supreme Court crusade, Israel’s “golden years” of
democracy were actually far less democratic than many have long believed.

Which is why if the nation’s current democracy movement is to truly succeed,
Israelis — left, right and center — should start with a serious lesson in
history. 

Dahlia Scheindlin is the author of the forthcoming book “The Crooked Timber of
Democracy in Israel: Promise Unfulfilled.”






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Filed under
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 * 7/29/23

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