(June 9, 2022 / JNS) Israel is currently mesmerized by the soap opera our government has become: Specifically, will the current coalition expire, and if so, when and how? As engrossing as the show might be, however, it only diverts our attention from the enduring, systemic issues that, if not addressed, threaten Israel’s democracy. These issues existed before the Bennett government, continued under it and will bedevil the nation under its successors.
First among these issues is the reality that Israel is not really a liberal democracy governed by the elected representatives of the people. Yes, we have the Knesset, which is charged with enacting legislation and setting the policies and priorities that are intended to steer the nation. But thanks to former Chief Justice Aharon Barak’s judicial revolution of the mid-1990s, Israel has an unaccountable oligarchy—the High Court of Justice—that has arrogated unto itself the unfettered discretion to strike down any enacted law, any IDF regulation or any security protocol it deems fit. The Court has even signaled its willingness to cancel, should it so desire, a Basic Law, which is tantamount to saying that the Court can declare Israel’s constitution unconstitutional.
The Court has essentially replaced the universally-applied doctrine of standing—i.e., who can bring an issue before the Court—in favor of their own discretion. The Court thus functions as both a forum of first hearing and an appellate forum simultaneously. The result is that the Court considers ten times the number of cases a year than the U.S. Supreme Court.
Many of these cases are petitions from NGOs lavishly funded by foreign governments, often brought on behalf of terrorists and their families. So if the IDF has determined to raze the house of a murderous terrorist, rest assured that a heavily lawyered appeal will be brought and usually prevail before the Court.
Simply stated, the Court makes its decisions based on what it thinks the outcome should be, regardless of other considerations, such as stated government policies or even enacted legislation. Therefore, the Court functions as an uber-legislative body, accountable only to itself.
What can be done about this? There has been a lot of handwringing about it on the right, but little effective follow-through. First, the mechanism for choosing justices is basically a self-reinforcing one, which could be changed so that that all justices must be approved by the Knesset. The recent decision to televise hearings on appointments to the Court is a good but ineffectual baby step. What is needed is a fundamental recalibration of who gets to nominate the candidates who will then undergo a televised hearing.
The other critically-needed antidote that needs to be considered is a Judicial Override Law, in which legislation struck down by the Court could be reinstated if passed again by a majority of the Knesset. This idea, based on the Canadian model, is akin to the veto power that a U.S. president has over congressional legislation, which can then be overturned by a two-thirds majority of Congress. Such an override mechanism will have the effect of compelling more grounded and defensible actions by the Court, as opposed to the freewheeling discretion it currently enjoys.
Tangentially related to the Court question, but also a major problem in its own right, is the pervasive and toxic impact of Israeli organizations funded by foreign governments on political discourse. This takes a number of forms: First, foremost and most frequently encountered is the shadow foreign policy that European governments conduct using anti-Zionist Israeli NGOs as their proxies. In the past decade alone more than 700 million shekels has been devoted to this insidious effort at demoralization.
This state of affairs leaves organizations like Breaking the Silence, B’tselem and Adalah, which have minimal public support, awash in funding that enables them to pursue the policies favored by their European patrons. These patrons are able to effectively hide behind the actions of locals, who after all have the right to express their views.
More recently, we have seen the same model applied to the media. Not long ago, there was a sudden eruption of media attention on the issue of “settler violence.” The only problem was that there was no outbreak of settler violence. Instead, there was an explosion of cash going to media outlets to encourage focus on the issue. My organization Im Tirtzu did extensive research that revealed an uncanny confluence between European support and media attention to “settler violence.”
Israel’s response to this should be based on the idea that democracy is not a suicide pact. In other words, by being so accessible and indifferent to manipulative discourse orchestrated by foreign governments, Israel is exposing its citizens to an incessant stream of information designed to produce questioning, demoralization and anomie on the justice of Israel’s policies and even its values.
There are ways to address this. The Transparency Law, which requires Israeli NGOs who receive more than 50% of their funding from foreign governments to publicly reveal this fact, was a start. However, foreign governments have now begun to use Israeli intermediaries to disperse their contributions, which allows the NGO in question to legally claim that its funding is domestic. Israel could deny tax exempt status to recipients of foreign government largesse, levy taxes on such contributions and take other steps to discourage or publicly highlight the issue.
These and other problems can and must be addressed by whoever is running the government. Left unaddressed, they have the potential to erode the social fabric of our society and deliver us into the hands of our adversaries.
Douglas Altabef is Chairman of the Board of Im Tirtzu, Israel’s largest grassroots Zionist organization, as well as a Director of B’yadenu and the Israel Independence Fund. He can be reached email@example.com.
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