Why Knesset’s court reform is entirely reasonable

Demonstrators gather around a bonfire as they block a highway during a protest against the Israeli government's judicial reform plan in Tel Aviv.

Anyone reading or watching most of the coverage of anti-government demonstrations in Israel in recent months could be forgiven for assuming the vast majority of Israelis were united in resisting a move towards some kind of dictatorship.

Even the Biden administration in Washington has contributed to this impression by its criticisms of the Israeli government. The reality, however, is rather different.

To begin with, those demonstrating are supporters of the parties that lost the last election in Israel. For many years Israeli politics has been subject to an almost equal division in the electorate and it is not surprising the side that lost on the last occasion is fiercely opposed to the policies of the existing government.

As to the particular policy that has provoked the constant demonstrations, the Israeli parliament, the Knesset, has now approved a proposal that would affect the current role of the country’s Supreme Court by removing some of its power over decisions made by the government.

How, it might be asked, could a proposal to transfer power from unelected judges to elected ministers be labelled anti-democratic and emblematic of a dictatorship? Unlike Australia and the US, Israel does not have a written constitution, so its Supreme Court cannot strike down laws passed by the Knesset on the basis that they are unconstitutional in the way Australia’s High Court or the US Supreme Court can, and regularly does.

But in the 1980s the Israeli Supreme Court overturned a government decision on the basis that it was “unreasonable” and on various occasion since then has struck down other government decisions on the same basis.

It is hard to imagine a more subjective criterion than reasonableness or one that allows a court more discretion in coming to a judgment. And it is difficult to see how allowing unelected judges to second-guess the decisions of an elected government on such an open-ended standard could be considered a linchpin of democracy, but this is the position of the Israeli opposition parties.

The government also has proposed a change to the way in which members of the Supreme Court are chosen. At present new judges of the Supreme Court are effectively chosen by a nine-member committee on which the existing judges and the Bar Association have a majority. The government of the day is not, therefore, able to make its own choices.

No doubt some lawyers, including members of the legal profession in Australia, would argue for limiting the role of governments in judicial selection, although allowing existing members of a court to select its new members carries the obvious danger of the court just replicating itself.

In any event, the Israeli government’s proposal to give it a greater say in this exercise can hardly be said to be a move towards dictatorship when judges of the US Supreme Court are nominated by the president – to be confirmed by the Senate – and judges of Australia’s High Court simply are chosen by the federal government.

Israel's Prime Minister Benjamin Netanyahu attends a session at the Knesset.

In contrast to the ill-informed coverage of these events by much of the Western media, Israel’s longstanding foes have no illusions as to what is happening but are more than happy to undermine the current Israeli administration.

Al Jazeera, which is an agency of the Qatar government, has given extensive coverage to the demonstrations since they began. Most of the demonstrators presumably do not realise the network, which condemns Israeli policies in the West Bank and Gaza in almost every bulletin, would be just as hostile to the state of Israel if their side of politics replaced the existing government.

Like so many expressions in modern politics, the notion of an attack on democracy has lost most of its meaning. In somewhat the same way “misinformation” usually means a statement with which the complainant disagrees, “anti-democratic” often means no more than a political proposal that is opposed by those making this allegation.

Winston Churchill famously remarked that democracy was the worst possible political system except for all the others, but he would perhaps be surprised at the way in which the concept has been distorted in so much of modern public debate.

Michael Sexton’s latest book is Dissenting Opinions.