Sarah Stem: Welcome to yet another extremely topical and extremely timely and extremely important AMEC webinar. As most of you know, AMEC does more than provide weekly webinars. We have an enormously vital function going to Capitol Hill almost every single day, consulting with and influencing our nation’s legislators. We not only hold these weekly webinars in order to help educate the public at large but every week we regularly meet with congressional offices to help increase their awareness of issues regarding the Middle East and how it affects America’s national security interests. Our members of Congress have grown to rely upon us and trust us. In order for us to be able to continue our valuable work, we simply cannot do this without your continuous support. We ask you to please go to our website at www.ameconline.org and consider making a significant contribution today.
Avi Bell: Sarah, you’re muted.
Sarah: Thank you. For the 8th consecutive week, well over a hundred thousand people have taken to the streets in a mass protest of Israel’s proposed judicial reforms. In fact, today was considered a “National Day of Destruction”, with protesters blocking the roads between Jerusalem and Tel Aviv. Unfortunately, in today’s protest, some violence did break out with police using stun grenades and water cannons. Emotional passions are running extremely high, both in the streets of Tel Aviv and Jerusalem and other cities, and within the Knesset, the Israeli Parliament. Whether we are opposed to or in favor of these reforms, we know that this is seemingly tearing the country of Israel apart. Slogans have constantly been chanted such as this is the end of Israeli democracy or this is a constitutional crisis, which I find extremely ironic since Israel never wrote a constitution. All of this creates a tremendous ripple effect in the way that Israel is being perceived in the international community and might affect one’s ability to successfully make the case for Israel using the popular mantra as Israel being the only democracy in the Middle East and it might well affect the country’s economic viability. On January 23, the Times of Israel had reported that hundreds of Israeli economists had signed a letter saying that these judicial reforms could cripple Israel’s economy. And last Friday, January 24, the business section of the New York Times ran a story interviewing some of Israel’s high-tech leaders who were quoted as saying things such as given the atmosphere now, it’s almost irresponsible to start a company here. The potential damage of such statements might be tremendous. We have already seen some of our enemies during our visits to Capitol Hill link forces with care. And I find this extremely upsetting, particularly at a time such as this when the IAEA inspectors have found particles of highly enriched uranium at the 83.7% enrichment level only maybe a dozen days away from the 90% enrichment level. And when the Palestinians have reinstated their waves of terror and renewed attacks unseen since the days of the second Intifada. In other words, Israel can ill afford to lose any international credibility and support right now. In order to better understand Israel’s proposed constitutional reforms, I can think of no better expert than Avi Bell. Avi is an Israeli Professor of Law at the University of San Diego Law School and at Barely University’s Faculty of Law. He received his BA. And JD from the University of Chicago and his SJD from Harvard. He interned in the office of Israeli supreme court judge Michael Hussein. I hope I’m pronouncing it right. In addition, Abi frequently writes about the Arab-Israeli conflict. He also debated the infamous Richard Goldstein in a debate at Stanford Law School entitled The Goldstein Report and the application of international law to the Arab Israeli club clutch. Excuse me. Where a few days later, Goldstein said that contrary to the report’s assertions, Israel did not intentionally target civilians because of Avi’s great work. In 2006, Avi criticized Human Rights Watch for its reports on the Second Lebanon War, claiming that the organization’s allegations mislead readers and betray bias. Avi also serves as Senior Fellow at the very well-respected Cohella Policy Forum and he has recently written a brilliant article for Newsweek magazine about Israel’s proposed judicial reforms. So, Avi, let’s start with the basics. How is the Israeli system different from that of the United States, or many other democracies?
Avi: First of all, thank you very much for having me. And thank you, everyone, for joining us. If you want to talk about the Israeli system, one of the things that may be the most important thing to understand for purposes of judicial reform is that Israel has actually had over its history two entirely different systems. There’s the Israeli judicial system as it existed more or less until the days when Aharon Barak ascended to the court. That was in the early 1980s. And then he served as President of the court. He was on the court until the early 2000s. And there’s the judicial system as it existed until Barak. And there’s the judicial system from Barak and on. So the judicial system until Barak was one that was taken more or less from the British, from the British mandatory era. And it was a common law system where judges exercised the kinds of powers that you see in common law countries like Britain, like the United States. Israel is a parliamentary democracy where parliament was supreme. It is a Westminster system like Britain that was taken almost directly from Britain. There was one unusual feature, which was, even before Barak, the Israeli judiciary was highly activist. It would interpret the law creatively in order to get in what it viewed as fundamental rights. And that’s the pre-Barak system. And then Barak came in and he changed things from one end to the other. And Israel moved away from being a traditional parliamentary democracy and more towards a system there’s no good term for it. But Ron Herschel, a Canadian social scientist, calls it a juristocracy, a system of judicial supremacy, where above and beyond all the elected branches, there is a court that changes social policy, establishes political rules. Now, Israel is quite unusual because it’s not the only place in the world where judges took a lot of power, but it’s the only place in the world where judges took the power to overturn legislation without a constitution. That is, they sort of made up their own rules than in a free-flowing fashion, struck down laws. And they did this while changing all sorts of other things in the system. They changed administrative law to make administrative law apply to everything and everyone. So private actors are subject to administrative law. And administrative law is very probing in Israel, for example, in Barak’s administrative law, the Supreme Court can strike down any decision that strikes it as unreasonable. And it finds a lot of things unreasonable. For example, it may find it unreasonable for a minister to refuse to resign when the court thinks that he’s not qualified, or he’s not qualified by law, but morally disqualified or too political, or has behaved in a bad way. They can find it unreasonable to launch a military operation. They can find that it’s unreasonable to do just about anything. They’ve raised taxes to lower taxes because it’s unreasonable to impose this tax. But it’s unreasonable not to have imposed that tax. It’s unreasonable to pay welfare benefits to these people. And it’s unreasonable not to pay welfare benefits to those people. It covers basically everything. And so here you have this new system, this new juristocracy in Israel, the Barak system, that’s unlike anything in the Western world, and it’s imposed a real cost on Israel. It’s politicized the judiciary, and it’s weakened Israeli democracy. And what the judicial reform–the proposed judicial reforms are all about is two things. So one of them is to eliminate some of the extremes of the post-Barak juristocracy, not all of them, but to put somewhere Israel somewhere back in the middle, between its original classic system and the post-Barak juristocracy. And the other thing that the judicial reform is trying to do is to change the appointment process for judges so we don’t end up in this place again. That’s the judicial reform in two sentences.
Sarah: Great. Well, how does the Israeli Supreme Court have judges and how are they selected in Israel? How does that differ from the way they were selected in the United States and other democracies?
Avi: In Israel, the way judges have been appointed since 1953 is by a semi-professional committee. Now, I have to say that in the early years of Israel, actually, appointments were through the standard democratic process. The government of Israel proposed judges. The Knesset ratified them, and that was it. There were some great judges that way. Then, in 1953, Israel installed a committee that consists of a certain number of judges, a certain number of ministers in the government, and other members of the Knesset, and two members of the Bar Association. And the way the committee is set up, and especially since a reform in the voting rules a few years ago, you cannot get judges through the committee unless the sitting judges agree. And in particular, that is, the President of the Supreme Court agrees because she controls three of the nine votes in the committee. And you need seven votes to appoint a Supreme Court justice, right? So you don’t get those votes, you’re not going to be a judge. The judges have used this power quite explicitly to control the ideological makeup of the Court so that only judges who are super activists can get appointed and who agree with the Barak agenda. In fact, Barak was quite open about turning down some fabulous judges because he said they have an “agenda” which meant non-Barak agenda. And so the proposed change here would be not to throw out the system entirely, not to go back to the original system of government appoints, Knesset approves. It’ll be a modified committee in which the Bar Association representatives will be removed. And I have to say, by the way,
they’ve been scandal written in recent years. So it’s a good thing they’re going and they’ll be replaced with the members of Knesset and the government. And what that will give is it’ll change the makeup so that instead of the judges having the last word on judges who get appointed, it will be the government and the Knesset. It’ll be elected officials. And this will bring Israel much closer to the way it’s done in those parts of the democratic world where judges have the ability to strike down laws.
Sarah: Can you explain to us the override clause and why this is necessary? And why is in Justice Minister, you have all of these proposed reforms? Is it just a simple majority of 61 Knesset members to override a Supreme Court ruling? There are many that argue that it would also subject the judiciary to partisan political perspectives depending on the makeup of the Parliament of the Knesset.
Avi: Yeah. So I actually think that the proposed reform of Minister Levin is a compromise that’s greater than the one I would have made. Let me explain what I mean. Traditionally, as I said, in no democracy in the world without a written constitution do judges get to overturn laws. That’s the way it is in England. That’s the way it is in New Zealand. If they find a law objectionable, they may voice their objections, but they can’t issue a binding judgment striking down a law. And in Israel, they couldn’t do this either until Barak. And when somewhere in the middle of Barak’s term in office in the 90s, he decided that Israel had undergone what he called a constitutional revolution that permitted the Court to overturn laws. And initially, he justified it in one way, and then afterward, the Court forgot those justifications and just overturned any laws that it wanted, an ever-changing list of excuses. But there is, in my opinion, no justification in the absence of a Constitution for the Court to turn down laws or strike down laws. I mean, in the United States, if the Supreme Court rules something, of course, Congress can overturn that. The only time that Congress is limited is when the Constitution says otherwise. And so if there’s a constitutional ruling then, and Congress wants to change that, then it’s going to have to go through the amendment process because it needs to change the constitution. Well, in Israel there is no constitution. Which means when the Supreme Court says that it doesn’t like a law of the Knesset, it’s just saying I don’t like it. And of course, I think in a democracy, the elected leaders should be able to say otherwise. I don’t think, by the way, it would be a bad idea to adopt a written constitution. There just simply isn’t a consensus on its content and there never has been. And so it shouldn’t be interpreted as an open door for the Court to do whatever it wants. Now, Levine’s proposal, and it’s interesting in this way, is Levine’s proposal says, instead of going back to the way things used to be before the judges took for themselves a power to strike down laws, let’s adopt a compromise that’s something like Israel already adopted in the past. So after Barak instituted his constitutional revolution and declared the power to overturn laws, one of the laws that he’d used as an excuse to override connected legislation, so-called the Basic Law, freedom of occupation, was amended to include an override clause. And it said that while the Supreme Court can overturn laws using this Basic Law, the Knesset has the ability to restore that law to force with 61 voting members, 61 out of 120. And so Levine’s proposal is, well, let’s do this more broadly, not just for base Law freedom of occupation, but throughout. That will give actually the Supreme Court the power to overturn laws, something which has been doing without legal authority until this, until today. But it will be limited, it will be limited in a way that Israel has done in the past. And by the way, it hasn’t come up with by Israel. It wasn’t an Israeli invention. It was borrowed in modified form from Canada.
Sarah: All right. So many have argued that the Supreme Court has gone much too far in waiting into issues that really seem to be more in the realm of foreign policy or economics than the realm of the judiciary, such as the Lebanese gas deal. Can you give us other examples of when they have invoked this concept of unreasonability for issues that really don’t seem like judiciary issues at all?
Avi: Yeah. The reasonableness is one of the things that come to the headlines, and I want to talk about that in a moment. But I think one of the things we have to understand is that Barak’s changes to the Israeli legal system are much broader than just a question of overriding administrative action for unreasonableness. So among the first things that he did on the Court was he got rid of standard restrictions on judicial review of anything. So he got rid of requirements that parties have an actual concrete interest in the case. He said that there’s no such thing as a justiciability doctrine. Everything is justiciable. In his phrase, the law is everywhere. Which means that if you have a meeting in the cabinet to decide on emergency action to free hostages, let’s say, who are taken to Uganda, then according to Barak’s doctrine, his understanding is there’s room there for the legal advisors, for the Attorney General, for the Supreme Court to say that rescue plan, it’s unreasonable. We don’t think that you’ve considered all the options. We don’t think that you can do something like that. And so it’s not just that Barak created these rules where he will overturn or the court would overturn government decisions, which means, basically, contrary to the ideological orientation of the Court, but also the Court will entertain anything. And so it’s almost impossible to find a subject that has not been touched by the Court. The court creates budgets. It takes them down. It adds to them, it reduces them. It’s closed-down prisons. It’s opened them up. It’s fired ministers. It’s fired chiefs of staff. It’s fired police chiefs. It’s ordered people to issue apologies. It’s said that you can give a prize to this person, but not to that person. They’ve ordered television programs off the air mid-broadcast. You cannot find a single area of Israeli life that is not ultimately under the control of the Supreme Court. This is completely alien, I think, to an American audience. You just simply can’t imagine the kinds of things that will end up in the courts. Baileywick everything.
Sarah: Have they waded into military operations?
Avi: Absolutely, and probably so.
Sarah: Okay. And you know that you, of course, and everyone on this program knows that Israel has basic laws, and talking about not only the rights of the Jewish people but human rights. There are those that seem to make a solid argument that the Supreme Court, as it now stands, is a protector of civil liberties and human rights. I know that Alan Dershowitz and Erwin Cutler, both of whom I admire and respect greatly, both of whom have received the Myth Speaker of the Truth awards at our annual dinners. Alan Dershowitz wrote in a February 15 piece in the Jerusalem Post that, “Courts should have no special competence in purely political and economic areas, and the popular will, as reflected by elected legislators, should generally prevail over the opinions of appointed judges. But when it comes to decisions regarding basic issues of civil liberties, human rights, minority rights, civil rights, due process, free speech, religious liberty, equal protection, and other enduring aspects of individual liberty, the Supreme Court should have the last word.” What is your feeling about that, Avi?
Avi: So I have to say both Alan and Erwin are dear friends, and I respect them a great deal, but I’m surprised by their statements. I think they’re very, very wrong on this issue. One of the things that Alan Dershowitz is saying there is that let’s keep the politics to the elected officials and rights to the courts. The problem is that sort of question never arises in Israel. It doesn’t arise in any basic democratic society, and it doesn’t because the question of rights always arises in political contexts. So I’ll give you an example. One of the first laws that the Supreme Court overturned was a law that gave an amnesty broadcasting license to a right-wing radio station called Arutheva. Arutheva used to broadcast at sea. They were sued. It was claimed that they were broadcasting within the territorial waters of Israel, and therefore they needed a license. And so they went and they begged and got Knesset legislation saying basically grandfathering them in allowing them to continue broadcasting even if it turned out that they were broadcasting within territorial waters. And the Israeli Supreme Court struck that down. That is, they overturned the Knesset legislation and shut down a radio station. Now they shut down the radio station. This is their argument. Their argument was that there are a limited number of radio frequencies in the world, and the day may come when all the radio frequencies in Israel have been given out and someone will beg for one, and Arutheva has already got it. And so we have to strike it down now, lest we get to this point where there are no radio frequencies left. Now, I consider that outrage and it’s clearly political, and it clearly by the way, also has to do with freedom of speech, right? It’s just that when you’re talking about– if you’re talking about freedom of speech, you’re talking about this always in a political context. And here we get to the second problem with what Erwin and Alan are saying is there’s no reason to believe that necessarily the Court is always going to get this right on questions of human rights and civil rights and political rights. In fact, they’ve quite often got it wrong. It’s not that the Court is anti-rights, but the Knesset isn’t anti-rights either. In a well-functioning democracy, it’s all of our jobs to be protecting and respecting human rights and basic civil rights. And we expect that no less of our elected legislators and our executive branch than we expected of the courts. It’s not an exclusive duty of courts to do these things, and if we make it the exclusive duty of one branch over all the others, that we say that only the Court has to worry about rights. I think what you end up seeing is something like this, where they exploit that power. Anyone who’s got that ultimate power is going to use it. I fear for political ends, and so sometimes they reach right decisions, sometimes they reach incomprehensibly wrong decisions, and there’s no one to stop them. What could the Knesset do after the Supreme Court struck down that law? That’s it, right? There’s no constitution. There’s no constitutional amendment process. There’s just no way in the system that Barak created to argue with the courts.
Sarah: Right, right. Do you believe that we should be or our people in Israel should be hard at work judiciary scholars should be hard at work writing a constitution at this point?
Avi: There have been lots of constitution, efforts to write constitutions, and I’ve been involved in some of them, I have to say. Right. And I think there are a lot of good proposals made over the years. But what makes it for a good constitution is not simply a process…sorry, a document that is attractive in the abstract. A constitution is a constitution because there’s a process by which the people accept it. There’s a reason the document begins. We, the people, right? And I think it would be wonderful if Israel were to adopt a constitution. I’m not sure, by the way, that there’s–I don think that there’s a consensus right now in its content. And I think it’s a very bad idea to try to impose an externally a constitution on a society that doesn’t agree on its basic principles. And I’ll add something that when you’re talking about Israel’s constitutional structure, pre-Barak right? Back in the day when Israel had what the British called their constitution, the British constitution was parliament is tops. The parliament could do whatever it wanted, and if it misbehaved, then the voters would turn out the members of parliament and bring in new ones. And that was the traditional understanding of the British constitution. That was the traditional Israeli understanding. But the Israeli understanding had one improvement on the British. One thing that made, I think, the Israeli system more protective of minorities and more sensitive to issues of rights, and that is that Israel has always had a proportional representation system. That is, the parliament has always been elected not by district, but by at-large voting, where even a minuscule percentage of votes can get you into the Knesset. And John Stewart Mill wrote about this 200 years ago. A proportional representation system ensures outsized power for minorities. Some would say that in Israel it’s too much, right? Primarily they say it’s too much when they’re looking at the minorities they don’t like, right? So the left wing will criticize the outsized power that the ultra-Orthodox Jews have in the parliament. And they’re right. They do like every other minority group. Every minority group in the parliament has a lot of power because they’re the nice edge. They control who’s going to be in the next coalition. And that ensures that the Parliaments of Israel cannot go off the rails. All right. It’s an important mechanism. And what’s most important is it’s a democratic mechanism. It’s not one that requires us to rely upon a self-appointed judicial elite exercising their judgment, which unfortunately is always influenced by politics and ideology. Instead, it relies upon mathematics, right? The dynamics of proportional representations.
Sarah: Of course, this past election, unfortunately, a lot of these really Arabs did not turn out to vote. So they didn’t feel that they were being represented in this parliament, in this Knesset. But of course, that’s their responsibility in a democracy to come out and vote.
Avi: I have to say, actually the turnout figures were not that low it turned out.
Sarah: Oh, really?
Avi: There was a fear that was expressed in advance. And I have to say that in some sense I believe that the fear was actually a fundraising mechanism to drive funds into voter turnout measures in the Arab sector. And there were a lot of money that was put in at the last minute sent by the Biden administration. But it turnout figures turned out actually to be quite reasonable. But aside from issues of turnout, in a system like any democratic system, the power of any individual to change the outcome is quite small. It’s only by mass groups. But people make their choices and you get to choose not only for whom you want to vote, but whether to vote. And if you decide that you’re not interested in voting and if an entire community decides to sit out an election, which again is not what happened, but let’s say it were to happen that the elder Orthodox were to sit out an election or Arabs were to sit out in an election, that’s a choice, right? And it’s a choice that whether I agree with it or not, I also have to respect. Now, I don’t think that you have a problem in Israel with Arabs being unable to exercise influence. I think that they’re unwilling, for the most part, the Arab political parties to make the concessions they’ll have to make in order to exercise influence. And the way it works is that in a parliamentary system, if you’re one of the smaller parties, you can’t expect to control the central issues of the day. But if you’re willing to give your votes on those issues, you should be able to go through every item on your wish list and get your way, right? If you decide that you’re not going to try to influence the national outcome on issues of war and peace and instead you just want to control welfare policy, you’ll get control of welfare policy because other people have bigger things on their minds. And the Arab political parties to date for the most part have decided they’re not willing to engage in that sort of bargaining. And by the way, in the last parliament, there was an Arab party that decided it was willing to engage in that bargaining. And it did. And it got exactly the kind of thing that you’d expect a minority party to get that is it traded in its votes on the big things for control of welfare policy and zoning and a handful…
Avi: …of smaller issues.
Sarah: Right, right.
Avi: Right. The handful of smaller issues and they got everything on their wish list.
Sarah: That’s great. All right. And now it is my supreme honor to turn the podium over to my wonderful colleague, Hussein Abbakhar Munsor, who will read some of the questions that have come in and perhaps even post some of his own. Hussein?
Hussein Abbakhar Munsor: Thank you very much, Sarah. And thank you very much, Avi, for such a timely presentation. Thank you very much to all our audiences who tuned in to listen to us today and those who sent us questions. Please continue to send us questions through the Q and A function through Zoom. Avi, we’ve received a lot of questions, as you may imagine. A lot of them are questions that I’m sure have you been asked, you talked about with people because they are kind of–some of the concerns circulating around us and written about in the media. So I’m going to combine a lot of these questions into some of the main concerns. So a lot of people basically say that this reform simply looks like it’s too much, too late. There is a question about the timing issue that basically questions the motives of the current Prime Minister Netanyahu and the current government in advancing such a big or significant judicial reform at this point in time.
Avi: My perspective is shaped by the fact that I’ve been working on this issue for decades. So to me, this is not new and it’s not quick. This is something that’s quite old and has been working on for a long time. Now, one of the things that’s shaping the way they develop–the debate is developing is that those of us who worked on the issue have memories of what happened the previous times that proposals have been made. And for the most part, what’s happened is that some figure has made them. Let’s say former Justice Minister Daniel Friedman proposes some changes to the system and then it gets bogged down in committee, it gets sent off to a committee and the judges and the legal advisors and Attorney General start weighing in. They have various opinions and reports get written and… you end up after half a year, a year and a half, two years, new elections, the government goes out, a new government comes in, and the reform is forgotten. So almost everything that you will see, you’re seeing today has been proposed before, and they’ve all been killed by going through a committee process. And that adds a sense of urgency if he wants to actually get done. The only way to do it is to try to push it through fairly quickly through the parliamentary process before it gets bogged down by the stalling tactics. Now, there’s the flip side of it. Maybe it’s too late. Maybe the successfully stalling the reform efforts over the last 20-30 years means it’s no longer worthwhile. And I have the opposite feeling. I think that what you can see is over the 20-30 years during which reforms have been proposed and shot down, the bad trends of the Barak revolution have only increased. And I’ll give you an example. About a year ago, the Court ruled on an amendment to budgetary law. Basically, budgetary law requires that budgets be presented and approved by a certain date in the year. And if they don’t, it’s considered that the parliament automatically voted with no confidence in new elections. And in several governments ago, the Parliament adopted a measure postponing that date by several months to allow more negotiations to go on. It was a unity government between Gansa’s party and Nasanao’s party and they had disagreements on everything. And the idea was to try to enable unity by having longer negotiations. And that’s what happened. And by the way, it didn’t work, right? There wasn’t a budget and the government did fall and there were new elections. But the Court ruled retroactively that the budgetary amendment was unconstitutional. And why was it unconstitutional? The Court said because it was adopted for a political reason, right? It was a misuse of the lawmaking power of the parliament to do this for the reasons of politics. This is something that Barak himself, back in the day would never have dared to say. But I think that the longer this goes on, the more the Supreme Court feels that its power really is unlimited and it can do whatever it wants. The sooner the judicial reform is adopted, the quicker we can start moving back to a healthy system of separation of powers in Israel.
Hussein: I just have a quick follow-up question on that. So you’re saying that this has nothing to do with the legal troubles that Prime Minister Netanyahu has been in for quite some time?
Avi: I’m saying that all these things I’ve been working on for decades and I can promise you I’m not a prophet. And I did not know what the Attorney General was going to come up with 20 years later about Netanyahu. Netanyahu is not driving this one and I think that– by the way, even if he were, should we reject a good form because of the political motives X, Y, and Z? I think that’s exactly the sort of thing the court just did a year ago, and it’s misuse ruling. And I think that’s a terrible, terrible way to make decisions. And by the way, I have to add– in addition to that, I think that the legal cases against Netanyahu are an embarrassment to the Israeli legal system. They’re a travesty. I don’t know which way they’re going to come out, but I’m quite sure that nothing that happens in this judicial reform is going to directly affect those cases. And if there were reform, there would be dozens and dozens and dozens and dozens of travesties like this that would never have occurred.
Hussein: Right. We’ve received a lot of questions about the override clause. Most of them are simply asking, Go, right? Why not change that one? Why not make it, that it requires a larger than a simple majority of 61 Knesset members to vote on a law? Why not compromise on this issue?
Avi: First of all, 61 is not a simple majority, right? A simple majority in the Knesset is two to one. That is, you don’t require 120 members to vote, and most times they don’t in the Parliament. So 61 is actually a hard number to reach. Most Knesset legislation never reaches that on any of the votes. Not first reading, second reading, third reading, none of them. Okay? 61 is a hard number to reach. But why not compromise? As I’ve said, is right? This is a compromise. This is a compromise that preserves, I think, a bad feature of the Barak Revolution, which is that the court gets to overturn Knesset legislation without any constitutional authority. I think that is not advisable. The compromise is to allow it to do so, but nevertheless to permit the Knesset to restore it. Now, 61 is the number that was adopted back in the 90s for the Basic Law of freedom of occupation, and it’s the number that’s required to change most of those Basic Laws that have number protections. Right? So Basic Law, is that Knesset can be changed by 61 votes. Now, to me, it seems anomalous to say that, you know, Basic Law, the Knesset can be changed with 61 votes, but when the Court decides willy nilly to overturn a law, then all of a sudden, now you’re going to need 65 or 70 or 80 or whatever it is to overturn it. And I also think it like, let’s understand that the higher the number is, the more that makes that– more that restores the Barak Revolution, where the Court is essentially able to do whatever it wants. It’s not bound. Not only is it not bound by elected officials, it’s not bound by a constitution. It’s not bound by anything. And that, to me, seems extremely undesirable in a democracy. In a democracy, you can’t have a situation where any branch of government is completely beyond the reach of any control. And that’s where we are without judicial reform.
Hussein: Okay, I will ask a lot of questions I received today. It is kind of similar comments from our viewers, but I’m going to take on kind of one of the concerns or the scenarios that are running, I’m sure, in the heads of the people who are demonstrating industries. Let’s say that I am from a minority. Let’s say I’m Arab Israeli. I’m LGBT. Some minority groups. And then Knesset, after the election of a coalition of government that let’s say it’s an extreme rightwing, passes a law that basically hinders one of my Basic Rights, and it best passes that law by a majority of 61 votes. What recourse if the Supreme Court can help me? What recourse do I have in order to restore that right if those judicial reforms pass?
Avi: So the recourse that minorities have in the old Israeli system pre-Barak and that they have in any democracy is elections. It’s politics. And I think that’s the great virtue of democracy. And I have to say that I think that the faith of Enlightenment thinkers and the founders of the American Republic, that the best protection of human rights is the people is well founded. And the idea that somehow or another, if there’s an unbounded court with unlimited power, it’s going to protect minorities better is belied by the record. Now, certainly, this court is interested in protecting certain minorities, those minorities that align with its ideology, but it’s also not interested at all in protecting other minorities. And as a matter of fact, it’s repeatedly overturned Knesset legislation to go after them. So this Court, for example, has quite limited sympathy towards ultra-Orthodox Jews. And so you’ll see if you go through the list let’s look at the list of cases where the court has overturned legislation. So you’ll see that, for example, they’ve overturned legislation repeatedly about welfare rights. And this is what they’ve said. They’ve said you have to increase welfare rights because of the human right to dignity which they view in some sort of socialist sense that is the right to a minimum financial standard. And therefore, if you’re a welfare recipient and you own a car, it’s unconstitutional for the Knesset to say that having a car is grounds for not giving you a full welfare benefit. On the other hand, they said there’s a kind of legislation that gave welfare benefits to yeshiva students right to ultra-Orthodox, basically to ultra-Orthodoxes to study full time in seminaries. And they said that’s unconstitutional. It’s unconstitutional to give them this benefit because why do they deserve it? Now, I’m sure that there’s some way of explaining these decisions, of lining them up. Why do these people deserve must get welfare benefits and those people must not get welfare benefits? Why it is absolutely necessary for equality to draft the ultra-Orthodox. But it’s not a problem at all for equality to not draft Arabs. Right? There’s arguments for these. They just simply are not arguments that sound in the protection of minorities, of all minorities, or inequality. I think there are arguments that reflect more the sensibilities of the judges and the protesters who share those sensibilities of the judges and they’re perfectly entitled to their sensibilities, but they’re are other sensibilities. And if the majority of the Israeli public has other sensibilities and they vote for those sensibilities, I think that we have to respect that.
Hussein: Right. I’ll have a follow-up on this question. I hope the viewers excuse me, we received a lot of questions, and they know we have to go through a lot of them. But what you just said, you said, okay, even as a minority, that records that you’re going to have is the next election, go and vote and get your own government in. But isn’t this idea of stricken balances, it’s specifically designed, in a democracy, to protect the rights of all citizens, including minorities, from any tyranny, including the tyranny of the majority, that basically that this situation is going to happen, right? The Knesset–A majority of the Knesset of 61 members are going to decide, and if you don’t, you wait for the next 61 members that you can get, and then you change that. And that’s basically going to become almost a journey of one coalition of government after the other.
Avi: Checks and balances, I think, is exactly what Israel needs. And I think that let’s understand what that means, right? So when the founders of the American Republic, when the drafters of the Constitution and the authors of The Federalist Papers wrote about this, checks and balances did not mean that in order to check or balance the democratically elected branches, you’ll have a court that exercises authority to strike down laws because they violate rights. Let me be even sharper about this. The terms when they were writing the term checks and balances in The Federalist Papers, there was no Bill of Rights in the US Constitution. They thought it was a bad idea. Now, let me add to that. I don’t know if you’re aware of this, but the very first case in the United States that struck down a law because it violated a constitutional right in the Bill of Rights was a case called Dred Scott V. Sanford. And the right that was violated was the right to own black people as slaves, as property. And the violation of their rights was that their property was taken away by the Missouri Compromise, which eliminated slavery in territories north of a certain line, specifically in this case in Illinois. I think checks and balances are extremely important to a well-functioning democracy. And that means checks and balances among the powers of the democratically elected branches. That’s their whole point. The way the Federalist Papers put it was to make ambition combat ambition. It’s to get the political ambitions of different groups to battle one another, not to have some self-elected elite exercise its own unaccountable judgment and strike down willy-nilly the judgments of the elected branches. So if someone here is working to undermine checks and balances, I think that it’s the opponents to judicial reform. I think that they’re undermining checks and balances. They’re undermining the separation of powers. They’re undermining the protection of rights. They’re undermining democracy.
Hussein: Right. Well, obviously, you’re very rational. I’m convinced. I’m with you. How is it now, explain to us and we’re just a lot of questions about this. Okay. We’re convinced. This makes so much sense. How is it that all of those people are demonstrating in the streets? What are they against? What don’t they like about any of that?
Avi: First of all, you have to understand something about Israeli political rhetoric, which is it’s always been hyperbolic. It’s always been over the top. And it’s no different now. It is different now. It’s more hyperbolic than ever before, but it’s always been hyperbolic. Your opponents are not just bad and wrong, they’re Nazis[?], they’re fascists. And it’s going to be the end of the world. And for the most part, what you’re seeing in the streets is opposition to a group rather than opposition to an idea. I don’t think that it particularly makes a difference what the idea is. If you flip the content of the judicial reform proposals, I think that you would see these same opponents out there arguing in favor of whatever it is just as strongly as now. They’re arguing against it. And in fact, many of the people who are out there in the streets screaming that the judicial reform will be the end of democracy in Israel. Six or 10 and 15 years ago were saying exactly the opposite. And I know this. I remember this. Right? And it frustrates me to no end that now they flipped their position for political reasons, but it is political reasons and it is part of the Israeli political culture. And it’s very difficult to hear, I think, from the outside because it’s very sharp and unfair and insulting and noisy. It’s exactly the kind of thing, the unbounded political debate that the Supreme Court, the United States described in the case of New York Times versus Sullivan. Right. It’s the way a functioning democracy works. It’s loud and it’s noisy and it’s really, really insulting. But that’s a sign, I think, of things working out of them being broken.
Hussein: Thank you. We received a lot of questions. I already can tell that we’ll not be able to have time to go through all of them. So I want to apologize to all of our audiences who are not going to be able to get to their questions. One of the questions that we received multiple times was actually about the end. Speaking of the end, the end of the Israeli economy and the end of Israel’s democracy. People have been hearing and reading, really on the pages of publications from all over, that this judicial reform is going to be the end of not just Israel’s democracy, but Israeli economic growth. There are talks about Israel…
Avi: It’s going to kill cancer patients, it’s going to destroy nature in Israel. It’s going to bring them out of a fascist dictatorship. No, I’m telling you, by the way, academic petitions that I’ve read that described all these things, that the result will be dead patient, that the result will be the destruction of nature in Israel. And as you can tell, I think that all of these are of equal hyperbolic merit.
Avi: I think that they reflect a style of communication rather than reflecting a real concern. Of course, it’s not going to do anything negative to the economy. Of course, it’s not going to do anything negative to Israeli democracy. Of course, it’s not going to do anything negative to cancer patients in Israel or to nature in Israel. Right. This is just hyperbole and it’s part of the style of Israel.
Hussein: Right. I wouldn’t say it’s just Israel. Just a side remark. You just reminded me, I remember reading maybe four or five years ago, an article in The Atlantic. I’m pretty sure still on their website from a Nobel Prize academic, that the Trump administration is going to bring the extinction of the entire human species. That was actually written in a very long essay in The Atlantic. Thank you very much, Avi, and thank you to all our audiences who sent us these questions. Avi, can you please provide your email for people who have more questions for you about this and who might be confused and would like to have some more clarifications?
Avi: Yeah, I’d be delighted to hear from anyone. I can’t promise that I’m going to respond very quickly. As I was saying to Sarah saying previously, I have a newborn at home, but just write to me at email@example.com and I’ll be happy to get back to you. You know, at a reasonable speed.
Sarah: Avi, first of all, I want to wish you muscle tough, personally, and for all of us, congratulations. I cannot thank you enough. I personally believe, as I said to Hussein prior to this, that the passion and the hyperbolic nature, the vociferousness of the debate, is proof of vibrant strong, is really democracy to me. And it is also proof that people, no matter which side of the issue you stand on, care passionately about the future of the Zionist enterprise. Whether you identify yourself as an Israeli, a Zionist, or a Jew, you want to see your version of the Zionist enterprise or of Israel continue. So I think if there’s anything positive to come out of this, I think those are the words. Unfortunately, people are human beings. Their identities are very invested in which side of the debate they stand. But going back to the days of Bate Hillo and Shamaiin the Talmud, that is the way our people debate. So, with that, I would like everybody to please thank Avi for adding to the level of the debate here with his brilliant words. And please continue to support us. You can support Avi through the Cohelit Forum, the great work of the Cohelit Forum, and in order for us to be able to continue this, please support us at www.ameconline.org. Thank you so very much, Avi and Hussein, you have a great day.
Avi: Thank you, guys.
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