Wall Street Journal: Israeli Democracy Isn’t Dying, A Sovereign Parliament Is The Norm

JERUSALEM (VINnews) — In a sharp diversion from other media outlets who are almost unanimously lambasting Israel for its judicial reforms, the Wall Street Journal continues to offer a cool-headed, insightful approach to the issue. In an editorial published Sunday, the newspaper describes how opponents to the reforms are sowing chaos at every level of Israeli society- social, economic, academia and security echelons – and then announcing smugly: “Look how chaotic Israel has become.”

The newspaper details the positive and negative aspects of the proposed reforms, and bemoans the fact that prime minister Netanyahu, who could ideally be the best suited to push a compromise on the reforms, is being prevented by the same judiciary- which is also at a conflict of interest- from dealing with the reforms. The article questions whether that in itself is democracy or dictatorship of the courts and the attorney-general.

Opposition to Israeli judicial reform has reached the “resistance” stage. That’s when media say democracy is dying, officials refuse to remain impartial, activists block key roads, barricade think tanks and harass politicians’ families, and investors muse about pulling capital. Air Force pilots are even shirking reserve duty. This is bad for the country, but it’s good opposition politics: Sow chaos, then shout, “Look how chaotic Israel has become.”

We try to keep our heads: Israeli democracy isn’t dying. Even if the reforms were to abolish judicial review of legislation, leaving the Knesset supreme, this would drag Israel all the way back to . . . 1995 [The year that legislation of Israel’s basic laws passed, granting sweeping authority to the judiciary to intervene on political issues]. It was a democracy then, and no aberration. A sovereign parliament is the norm in parliamentary democracies that lack a written constitution for courts to enforce.

President Biden says Israel needs consensus, but there was no consensus for the “judicial revolution” in which Israel’s high court, starting in the 1980s, made itself the final arbiter on all things. “Everything is justiciable,” declared a former chief justice. The court has reviewed cabinet appointments, budget allocations, combat decisions and even whether the Prime Minister is “unfit” for office. It also empowers the attorney general, a civil servant, to pre-veto government policies with legally binding opinions.

Most Israelis now accept that the judiciary needs reform—a major achievement by the right. But the Netanyahu government hasn’t convinced Israelis that its reform plan is the right one. Rather than provide room to negotiate, its most aggressive proposals have hardened the opposition and alienated voters.

Mostly the reforms are sensible: The government has to be free to argue its own legal positions. The court’s “reasonableness” standard for striking down actions it doesn’t like has been unreasonable. The government is right to remove the court’s power over selection of new justices, which has been abused to exclude qualified, dissenting jurists.

Most controversial is a clause that would let a Knesset majority override the court when it strikes down a law. The problem here isn’t with giving elected representatives the last word on most matters of law. It’s that the override is a recipe for unending and corrosive constitutional conflict.

Far better to protect a political sphere by restoring the standard restrictions on which cases the court will hear, and then let the court rule within its areas of competency. Israel would be made more democratic, not less, and the judicial safeguards would remain. The Israeli system might even become more functional, for a change. Today there is no limit on cases that Israel’s high court can hear, in contrast to the U.S., where a litigant must have a concrete injury to have standing to sue.

Shrewd thinkers on Israel’s right understand that compromise is needed to lower the stakes, regain the public’s confidence and pass something durable. The opposition, however, sees Prime Minister Benjamin Netanyahu standing on a ledge and has no desire to let him off lightly. The coalition will have to moderate its own proposal and settle for partial victory, even though the true believers won’t like it.

Israel will need Mr. Netanyahu to use all his political cunning to break the logjam. There’s one problem: The attorney-general has barred the Prime Minister from involvement in court reform, alleging a conflict of interest with his criminal trial. It’s the No. 1 issue in the country he was elected to lead, an issue his coalition ran on, yet the judiciary—which has its own conflict of interest—has a gag order on the Prime Minister. How’s that for democracy?