The real threat to Israeli democracy

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The huge demonstrations that continue in Israel and turned violent this week are fueled by the claim that the government’s judicial reform package spells the end of Israeli democracy.

Melanie Phillips

It is, of course, beyond nonsensical to try to bring down a democratically elected government with calls for “bloodshed on the streets” and “civil war” on the basis that—according to the organisers of Wednesday’s “day of disruption”—the government is a “regime” attempting a “coup” against democracy.

These protests are also based on a set of misunderstandings about the reforms.

The situation is crying out for political leadership. Israeli Prime Minister Benjamin Netanyahu needs to spell out to the public why these reforms are intended to correct an anti-democratic imbalance caused by judicial overreach.

But Netanyahu has been prevented from doing so. As he wryly observed at the Conference of Presidents’ meeting in Jerusalem last Sunday, Attorney General Gali Baharav-Miara has imposed a “gag order” on him.

This is because of a 2020 conflict of interest agreement arising from the court cases against Netanyahu. Last month, Baharav-Miara told the prime minister that this agreement prevents him from speaking about or having anything to do with the judicial reform package.

Her instructions included an opinion by her deputy that the reforms would “benefit the prime minister in terms of the administration of his trial” and allow the governing coalition to advance legislation that could assist him more easily.

That is merely an opinion. There is no evidence for it at all. Moreover, since Baharav-Miara has herself publicly opposed the reforms, claiming that they would give the executive and legislature “broad and effectively unlimited authority,” it is she who would seem to have a conflict of interest over this.

Baharav-Miara’s gag order is, therefore a highly political maneuver to shackle a democratically elected prime minister’s ability to govern the country. It is an example of the very judicial overreach that Netanyahu’s government is attempting to correct.

It’s therefore supremely ironic that the order is preventing him from making the case for the judicial reforms, confining him to exhorting the demonstrators to end their violence and disruption.

The general hysteria is being driven by people with the explicit agenda of getting rid of Netanyahu. Most of the protesters are from the political left, for whom Netanyahu has demonic status. They also consider a “right-wing” government to be, by definition, an offence against the natural order.

But there are also protesters not on the left who are genuinely worried about potential abuse of power by a government that will no longer be constrained, as they see it, by the courts.

In part, this is due to Netanyahu’s behaviour when last in office. During that time, he progressively concentrated ministerial power upon himself. Moreover, some aspects of the reforms are indeed troubling.

Professor Moshe Koppel, head of the Kohelet Policy Forum and a key architect of the reforms, has himself spoken out against their most controversial aspect: The proposal that would allow the Knesset to override Supreme Court rulings with a bare majority.

Compromises are undoubtedly needed and some are already being proposed. They are unlikely, however, to satisfy the protesters. There are deeper reasons for their belief that Israeli democracy is about to end.

Israel’s judicial overreach began in the 1990s, when then-Supreme Court Chief Justice Aharon Barak began to blur the boundaries between law and political activism.

He was, however, merely taking a position that had steadily gained traction in Britain during the 1970s and 1980s. It became the prevailing orthodoxy of left-wing politics and the legal world, and eventually progressive circles throughout the West.

This was the development of universal human rights law. International human rights conventions were developed after World War II by lawyers who believed Nazism showed that national laws cannot prevent tyranny. Universal laws were needed to protect people’s rights.

While admirable in intent, this was also a badly flawed idea.

Rights come from a prior set of duties, without which they cannot exist. True human rights were given to the world by the Hebrew Bible, in which belief in human dignity gave rise to justice, compassion and the network of obligations that create a society of free individuals.

Without being anchored in a network of duties, rights amount to nothing other than demands. Accordingly, universal human rights law helped create “victim culture,” with groups competing for preferential treatment on the basis of their presumed powerlessness.

Human rights law is innately biased towards “powerless” minorities and against the “powerful” majority. This was acknowledged by the eminent English judge Lord Bingham, who said in a speech in 2008 that human rights legislation is “in one sense undemocratic in that it is counter-majoritarian” since its purpose is to protect the politically powerless.

Trouncing the majority thus became identified with virtue. “Powerlessness” gave self-identified “victim groups” an exemption from their own obligations while, simultaneously allowing them to demand privileges from society.

This is what lies behind identity politics and “intersectionality,” which have increasingly terrorised all who stand in the way of granting those demands.

However, human rights law is not universal but mediated by judges, whose rulings must balance competing rights and are contingent upon prevailing cultural attitudes.

Yet because human rights are identified with virtue, judges came to think they were not just the guardians of domestic law but defenders of good against evil.

That’s why Aharon Barak led his judicial revolution in Israel, which allowed the judiciary to feel morally virtuous in striking down political actions of which they disapproved.

In addition, universalism, which became the default political creed of left-wing politics, undermines the very concept of the nation that underpins democracy.

Universalism deems the nation to be inherently exclusive, bigoted and oppressive. National laws, therefore, need to be subordinate to universal principles.

When universal human rights law was created, some lawyers warned that such laws, not being anchored in any national jurisdiction, could pose a potential risk to justice.

The warning was ignored. But that is precisely why human rights law has been weaponised against Israel.

It’s why human rights NGOs have been able to position themselves as the conscience of the world, even while they maliciously defame Israelis as human rights offenders and excuse the Palestinian Arabs’ genocidal attacks.

It’s why the U.N. Human Rights Council disproportionately and unjustly targets Israel while sanitising tyrannical regimes—some of which are even members of the council.

It’s why the Palestinian Arabs can foment vexatious actions against Israel in the International Court of Justice or the International Criminal Court.

Human rights culture has created “lawfare” against Israel, against justice and against democracy. It has transformed judges from custodians of the rule of law into perpetrators of rule by lawyers.

The threat to democracy in Israel isn’t coming from the Netanyahu government but from the thousands in the streets. Ultimately, it’s an attack on the very idea of a nation-state governed by the consent of the majority expressed through democratic laws.

That’s why it’s no surprise that these protests are being backed by the New Israel Fund, whose current attempt to bring Israel’s government down is of a piece with its relentless undermining of Israel itself.

And it’s why this battle is, in fact, the third such war over the idea of the nation in the West.

The first was Britain’s vote in 2016 to leave the European Union, when the British people voted for national independence and democracy against universalism.

The second was the election later that year of U.S. President Donald Trump when Americans voted to restore American exceptionalism against those who sought to undermine their nation.

Now the third such convulsion has erupted on Israel’s streets as universalism challenges democracy once again and turns language, truth and reason upside down.

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.