Preserving Israel’s character
In our School Vision we state that we aspire for our students to develop “a close and meaningful relationship with the land and State of Israel”. Balancing the building of a sense of identification, affinity and love of Israel with an age and developmentally-appropriate analysis of Israel’s complexities and nuances can prove challenging. To what extent is it reasonable for us to critique the policies and actions of Israel’s government?
When I discuss this with students, I run through an exercise. I ask them to close their eyes and visualise the person or people that love them the most in the world. Then I ask them to visualise those that criticise them the most. Finally, I ask how many of them are the same people. Invariably, for the vast majority, they are.
When we truly love someone we aspire for them to be their best self. We care deeply about their values and actions and try to intervene when they are askew. As Elie Wiesel said, “the opposite of love is not hate, it is indifference.”
So this week, along with many Jews in Israel and worldwide, I show my love for Israel by despairing at the passage of legislation that threatens to significantly erode the democratic principles that sees Israel at its best.
When the Knesset voted to remove the capacity of the Supreme Court to review decisions on the basis of their reasonableness earlier this week, the first major step in the Netanyahu government’s judicial overhaul process was realised. In taking this dangerous action, the government has begun to undermine the foundations of Israel’s democracy.
The immediate aftermath has seen damage to Israel’s economic outlook with international credit agency Moody lowering Israel’s status from ‘positive’ to ‘stable’. The shekel and the average Israel stock value have both plummeted. A large number of Israel’s famous entrepreneurial start ups are seeking to shift operations overseas. More than 10,000 army reservists have stated that they will refuse to present for volunteer duty. Members of Israel’s team of nuclear scientists have threatened to resign in protest. There have been previously unprecedented strikes by doctors and hospital staff. Many hundreds of thousands of civilians have taken to the streets daily in opposition to the measures and organisers have vowed that this will continue. In a recent Israeli survey, 28% of respondents reported that they are considering leaving the country in response to the judicial overhaul. Additionally, 56% of respondents worried that the situation could devolve into a civil war. It is no exaggeration to state that Israel is in crisis.
A key debate in global jurisprudence is centred around philosophical differences regarding the role of the judiciary in relation to other branches of government. There have always been critics of perceived ‘judicial activism’ where judges are accused of taking too broad a role in their interpretation of the law that goes beyond a black letter reading.
However, the role that the judiciary must play in upholding the legal framework is highly contextual. The balance of powers between the legislature, executive and judiciary must adjust in proportion to the range of systematic protections built in to avoid an excessively powerful branch of government acting in a dictatorial manner.
In Australia, we have many protections. We benefit from a constitution which can only be changed via referendum, a bicameral system of government which provides for legislative review, and a range of other avenues of legal review as a consequence of the many international treaties that we have become signatories to.
In Israel, there is no constitution. Rather, there are basic laws which can be overturned by simple majority. There is only one house of parliament and there are far fewer international treaties that Israel is subject to.
In this void, the Supreme Court has played a significant role as a check and balance on the actions of the government. Within this context, the use of the reasonableness clause has been a way to prevent what can be seen as abuse of power.
‘Democracy’ has come to be one of the loaded terms that covers a vast range of systems and practices. In the current political climate in Israel, both sides of the debate cite democracy as the principle which substantiates their position.
The supporters of the judicial overhaul see democracy in wresting power back from the Supreme Court to the Government. Opponents see a brazen power grab by the Government and a radical and partisan change to Israel’s basic laws that stand as Israel’s quasi-constitution.
Democracy should be understood as far more than simple majority rule. It covers a system of government in which the people have a right to vote for their representatives in free and fair elections; and one in which the rights of all citizens are upheld, including those of the minority. It also requires appropriate checks and balances to curb the misuse of power.
A doctrine of law is the application of reasonableness as a measure of appropriate action. The reasonable person test is central in determining the outcome of disputes in many areas of law. In assessing evidence, a key question a court will ask is, ‘Would a reasonable person have acted in this way?’
Removing the Israeli Supreme Court’s capacity to review the reasonableness of government decisions is questionable at the best of times and, even more so, when considered in light of the perceived conflicts of interest of the current government of Israel.
This government is led by a Prime Minister who is on trial for fraud, breach of trust and accepting bribes. Upon his election, the Attorney General wrote to Bibi Netanyahu stating that he must not be involved in work on the judicial overhaul as work to weaken the judiciary by a defendant constituted a clear conflict. Nonetheless, Netanyahu has ignored the advice and continues to both involve himself and comment freely on the issue.
Further, the government’s all out attack on the judiciary was thought to be partly in response to the “reasonableness clause” being used to invalidate another member of Knesset, Aryeh Deri, from taking on senior cabinet positions including the role of deputy Prime Minister following multiple convictions for bribery and tax evasion.
Government members have also made public statements about using their majority to reshape Israel and have been shown to use their power vindictively against their opponents. Threats to sack the Attorney General, attempts to influence Police tactics against protestors and the pressuring of the Police Chief to demote Tel Aviv’s District Commander are examples of this nefarious abuse of power.
Despite the government’s proclamations that the overhaul is a genuine and noble attempt to rebalance the powers, it is hard to see this as anything other than a cynical exercise in both consolidating their control and removing any obstacle that could undermine their aggressive legislative agenda which aims to reshape Israel in support of the goals of the most right wing government in its history.
It is both with sorrow and pride that we witness the grief, anger and disbelief of those fighting to preserve the character of Israel as a just, Jewish and democratic state. I believe that the most loving thing that we can do for Israel right now is to reach out to these courageous demonstrators and show them our solidarity and support.
As we sing in Hatikva, “Our hope will not be lost. The hope of two thousand years to be a free people in our land. The land of Zion and Jerusalem.” L’hiyot am chofshi b’artzeinu.