The urgent need for Israeli electoral reform

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Democracy is currently being undermined in many parts of the free world.

In Israel, the threat is deeper and wider than either side will admit, given the near-civil war that has erupted over the government’s proposed judicial reforms.

Melanie Phillips

Enormous demonstrations against the reforms have been taking place in Tel Aviv and elsewhere over the past nine weeks.

The protesters say they are fighting to defend Israel’s democracy. Yet how can this be if their declared aim is to bring down the democratically elected government?

Democracy involves the rule of law rooted in public consent, achieved through the election of political representatives who pass those laws. This is safeguarded by free and fair elections, independent judges, police and prosecutors and a free press.

The problem is that, for the past 30 years, the Israeli courts have been undermining democracy through behaviour that owes more to the judges’ political and ideological views than to law.

After Benjamin Netanyahu became prime minister once again last December, people petitioned the Supreme Court to force him to step down on the grounds that he was under indictment on corruption charges.

Although there is no law preventing a prime minister from serving while under indictment, the Court didn’t throw out this petition for having no legal standing. Instead, it heard the case, and although it declined to bar Netanyahu, the Court said it could have done so—thus indicating that it deemed it within its power to nullify an election result.

There are many other examples of the Court’s overreach, including its institutionalised grip on government ministers, which in some cases has prevented them from delivering the policies they were elected to enact.

Certainly, compromise is needed. The override proposal, according to which the Knesset could invalidate a court ruling, is indeed a route to potential political abuse. The independence of the judiciary would be properly safeguarded by including academics and other non-legal and distinguished citizens on the committee that selects Supreme Court justices.

But the protesters aren’t putting forward compromise proposals. Instead, as the opposition leader Yair Lapid and others have repeatedly said, the aim is to bring the Netanyahu government down.

The protests are being fueled by several different but overlapping agendas. There are left-wingers who are hostile to a “right-wing” and religiously dominated government. There are those for whom Netanyahu has long been irrevocably beyond the pale. And let’s not overlook the lawyers, who are dedicated to the judicial activism that’s now orthodoxy in legal circles.

In a podcast with Daniel Gordis, Prof. Yaniv Roznai, a specialist in comparative constitutional law, noted that Israel has one lawyer for every 250 people. This is a higher ratio than in any other country, and includes an astonishing one in 25 of Tel Aviv’s population.

But beyond all these interest groups, there are also many who are horrified by the inclusion in the government of the ultra-nationalist and religious politicians Itamar Ben-Gvir and Bezalel Smotrich, which has spooked them into the fear of an extremist government ripping up democracy.

This triggered the statement by dozens of reserve soldiers and officers from Israel’s Military Intelligence Research Division that if this “dangerous” legislation was approved they wouldn’t continue to volunteer for reserve service. A group of 37 elite Air Force pilots from the reserves said they would skip a day’s training in protest.

One intelligence major wrote that the government was now an “illegal mafia.”

“A criminal gang is perpetrating a violent governmental coup and trying to crush the Israeli justice system, which will end Israel’s days as a law-abiding democracy,” as well as “attempting to impose dictatorship,” he said.

This was hysteria, and all the more alarming coming from such an apparently stellar individual. No one should question the patriotism and service of such military protesters. But their record in defending the country against physical attack doesn’t mean their political views should carry weight.

Most important, their actions undermine the security of the nation. Such behaviour by some of the country’s heroes has shocked and horrified much of the public.

Yet the reaction by certain government ministers has also been shockingly irresponsible. Information Minister Galit Distel called the pilots “a pathetic bunch of deserters.” Minister of Communications Shlomo Karhi said, “The people of Israel will manage without you and you can go to hell.”

In this dangerously incendiary atmosphere, there’s an overwhelming need for government ministers to dial down the rhetoric and try to bring people together, not fan the flames even further.

Amidst all this political mayhem, Netanyahu has been giving the impression that he’s lost control. True, he’s unable to put the case for his own reforms or help negotiate a compromise because he’s been barred from doing so by the attorney-general—an example of the very overreach the reforms are aimed at addressing.

Beyond that, however, he has not publicly sought to calm passions and bring the country together, presumably because he’s trapped by the need to keep his coalition partners from storming off and bringing down his government.

This goes to the core issue of this dangerous situation. Successive Israeli governments have been held hostage by groups representing tiny minorities inside the coalition.

This is because Israel’s political system is innately dysfunctional. There are no effective checks and balances, such as the constituency pressure on politicians or second chamber of parliament as in Britain.

As Israel’s first prime minister David Ben-Gurion himself acknowledged, he made a mistake by failing to install an electoral system on the British first-past-the-post model. He chose a system that he believed would reflect and therefore unite Israel’s many tribes. Now, this has erupted into unbridgeable divisions, explosive acrimony and the destabilisation of the country, making the need for electoral reform overwhelming.

Israelis’ deep contempt for their electoral system surely helps explain why so many see any potential threat to democracy coming only from politicians and never from the courts.

But the problem is the system itself, which forces an ultimate zero-sum choice between two potential evils: Overreach by judicial oligarchs or overreach by political oligarchs.

The increasing fragility of democracy, however, is on display outside Israel as well. There is widespread disillusionment with politicians and disenchantment with democratic institutions that seem dismissive of the interests of the public.

In the United Kingdom, the reassertion of democratic national independence in the 2016 referendum vote to leave the European Union is being undermined by a government proposal that would leave Northern Ireland under E.U. control through its single market laws.

No less alarmingly, many young Brits—schooled in the belief that the Western nation-state is itself illegitimate and racist—say they don’t think there was anything wrong with communism.

In America, a similar belief that the nation is mired in original sin has fueled the rise among the young of identity politics ideologies, all of which are fundamentally anti-majoritarian.

The U.S. also remains dangerously polarised between those who believe the last presidential election was stolen from them and those who believe former president Donald Trump and his supporters tried to mount a coup against democracy in the January 6 Capitol riot.

Israel’s current convulsions are playing into its enemies’ hands. Iran is gloating. And as commentators Lee Smith and Michael Doran have noted in Tablet, the Biden administration is not-so-covertly aiding in efforts to bring Netanyahu down.

In Israel, divisions have now been brought to a head, which threaten to split the Jewish people. Those aware of the lessons of Jewish history and know that such splits brought about the collapse of the ancient Jewish commonwealths are beside themselves with anxiety.

It is scant comfort that Britain and America are facing a similar reckoning.

Melanie Phillips, a British journalist, broadcaster and author, writes a weekly column for JNS. Currently a columnist for The Times of London, her personal and political memoir Guardian Angel has been published by Bombardier, which also published her first novel, The Legacy. Go to melaniephillips.substack.com to access her work.