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Democracy and the Secret “Rule of Law” in Israel

There is much misunderstanding in the Diaspora and even in Israel about Israel’s system of government—an assortment of institutions that endow a few men with concealed and despotic power.

A basic reason for this pernicious state of affairs is Israel, unlike France or the United States, has no written constitution. Instead, Israel has a crazy-quilt variety of “Basic Laws” passed at different times by different governments led by different political parties.

Israel’s first Basic Law, The Knesset, was initiated by the Knesset Law Committee in 1958, ten years after the founding of the State. Some other Basic Laws are Israel Lands (1960); The President of the State (1964); The Government (1968); The State Economy (1975); The Army (1979); Jerusalem, Capital of Israel (1980); The Judiciary (1984).

A word about Basic Law: The Government. This law stipulates, “The Government is competent to do in the name of the State, subject to any law, any act whose doing is not enjoined by law upon another authority.” The Government can therefore declare war, make treaties, and change the exchange rate without ever consulting the Knesset!

(Note: Treaties are not ratified by the Knesset; they are merely announced by the Government and published within 20 days thereafter. The Knesset may pass a resolution in favor of a treaty, but this has no legal significance. Of course, the Government fosters Knesset approval to make a larger number of MKs complicit in a prime minister’s autocratic, if not criminal, deeds.)

One would think that a Basic Law, like an amendment to a Constitution, would require the approval of a super-majority of the Knesset as well as a popular referendum. Not in “democratic Israel.” Here Basic Laws are enacted by ordinary legislative procedures; and what makes this outrageous, is that in Israel, no quorum is required to pass legislation. In fact, Israel’s most important Basic Law: Human Dignity and Freedom (1992), was enacted with only a minority of the Knesset present and voting!

Nevertheless, former Supreme Court president Aharon Barak construed this law as endowing the Court with the power of judicial review. This interpretation of Basic Law: Human Dignity and Freedom was nothing less than a judicial coup d’état, for it prompted Barak to decree that “everything is justiciable.” The dictum “everything is justiciable” logically includes the laws bestowed at Mount Sinai. Barak made the Court not only a super-legislature, but one that arrogates to itself the power to prescribe the morality of the Jewish people!

Such is the Court’s unprecedented power—unequaled in any democratic country—that Barak, a left-wing cultural relativist, went so far as to rule in 2005 that Basic Law: Human Dignity and Freedom did not apply to the Government’s expulsion of 10,000 Jews from their homes in Gaza and northern Samaria.

So what is “basic” about a Basic Law? Depends on the whim of the Supreme Court. Barak’s dictum that “everything is justiciable” makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It would be more accurate to classify Israel’s system of governance as a judicial despotism. This is very much the opinion of various scholars, including the eminent American Judge Robert Bork.

It will be asked: “Why doesn’t the Knesset curtail the power of the Supreme Court?” In theory, it has the power to do so, but there are other secrets about “Israeli democracy.”

As I have often pointed out, Israel makes the entire country a single electoral district, which precludes regional elections—the practice of almost all democracies, 26 of which are smaller in size and population than Israel. Israelis are compelled to vote for a party list, and parties win Knesset seats via proportional representation.

The Knesset is not a “House of Representatives” accountable to voters but a “House of Parties.” Since MKs are not individually accountable to the voters in constituency elections—which enables them to ignore public opinion with impunity—they have a vested interest in preserving the existing system. This system, superficially democratic, renders the people powerless: it effectively disenfranchises them. Let’s be more specific.

Although public opinion in Israel has been more right-wing than the Government on the territorial issue, the Government, regardless of which party or party coalition has been at the helm, has pursued the fatal policy of “land for peace.”

This policy has been supported by the Supreme Court, dominated by Israel’s left wing. The Barak court ruled that Judea, Samaria, and Gaza constitute “belligerent occupied territory”—a position thoroughly refuted by Attorney Howard Grief, as may be seen in his just published book The Legal Foundations and Borders of Israel Under International Law (Mazo Publishers).

However, if the Knesset were to make its members individually accountable to the voters, a large majority of the latter would demand an end to the Court’s dictum that “everything is justiciable,” the dictum that enabled the Court to sanctify the Government’s expulsion of Jews from Gaza—the fate awaiting hundreds of thousands of Jews in Judea and Samaria. We see, therefore, that democratizing the Knesset would lead to democratizing the Supreme Court, which would thwart implementing the policy of “land for peace.” This secret needs to be exposed. Nor is this all.

The policy of “land for peace” needs to be seen as a consequence of the absence of the rule of law. MK Ruby Rivlin had the candor and courage to admit that what is called the rule of law in Israel is really “a gang that rules under the façade of the rule of law.”

This secret should be vigorously exposed by opponents of “land for peace.” Demonstrations against “land for peace”—all honor to the participants—will fail unless they actively pursue a constructive and inspiring goal: radical reform of Israel’s entire system of governance.

It’s not enough to rue the lack of leadership in Israel. Israel needs leaders committed to the reconstruction of the very foundations of the state, leaders armed with profound knowledge of institutions—the kind needed to make Israel a Jewish commonwealth capable of conquering her enemies.

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