Israel’s Supreme Court and Democracy
On September 12, Israel’s Supreme Court heard arguments for and against petitions from the Association for Civil Rights in Israel, the Movement for Quality Government, and other public watchdog NGOs. The petitioners asked the court to strike down a Basic Law enacted by the Knesset in July that prohibited judicial review of decisions of government officials on the grounds of reasonableness. “Reasonableness” is a British common law doctrine inherited from the Mandate era and incorporated into Israeli jurisprudence.
The case was so momentous that, for the first time ever, all 15 justices sat as a single panel. The court is unlikely to rule for at least several weeks and is not required to render its judgement until mid-January.
Much of the argumentation was based on differing definitions of democracy: Is it simply elections and majority rule? Or does it include protection of minority rights, equality of all citizens before the law, guarantees of basic human rights, and checks and balances on branches of government?
The US political class and corporate media and mainstream Jewish institutions, with rare exceptions, do not discuss the nature of Israeli democracy. For the most part, they mechanically intone the doctrine that Israeli is a “democratic and Jewish state.”
For example, in July Rep. Jan Schakowsky (D-IL) introduced a Concurrent Resolution (full text below) in the House of Representatives with 11 original co-sponsors reaffirming that doctrine. The resolution proclaims that “democracy is at the core of the special relationship between the United States and Israel” and expresses support for the current protest movement in Israel.
The sponsors and supporters of that resolution might learn something about Israeli democracy from 230 Israeli Jewish high school seniors who declared their refusal to be drafted into the Israeli army (IDF) on September 5. The open letter of “Youth Against Dictatorship” links the current struggle against the assault on the Israeli judiciary and “the regime of occupation and Jewish supremacy”:
We, young men and women who are facing conscription, say no to dictatorship - both in Israel and in the occupied Palestinian territories, and announce that we will not enlist until democracy is guaranteed to everyone who lives under Israeli rule…
A government that destroys the justice system is a government that we will not agree to serve. An army that conquers another people is an army in whose ranks we are not prepared to fight. The legal coup has already caused enormous damage to Israeli society and the Palestinian people.
The dictatorship that has existed in the territories for decades is now flowing into Israel and directed towards us. The violent settlers now control the entire country. This trend did not start now - it is fundamental to the regime of occupation and Jewish supremacy. Now the masks have simply come down. Faced with this reality - we say no!
Yahli Agai delivered a speech (full text below) at the event organized to reveal the open letter. She offers an outline of Israel’s undemocratic practices linking the Palestinian Nakba, discrimination against Mizrahim, the power of Orthodox rabbis, incitement to anti-LGBTQ violence, settler fascism, and Jewish supremacy and calls for “democracy or rebellion.”
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Yahli Agai
Speech at the Herzliya Hebrew Gymnasium (High School), Tel-Aviv
Sept. 5, 2023
Israeli democracy is a controversial subject. There is much debate about its scope and depth, but there is a broad consensus that in recent months it is in the process of being significantly constricted by perhaps the most extreme and anti-democratic government there has ever been here, through a series of laws known as the judicial overhaul.
I want to say a few things that I hope will stimulate your thinking a little about democracy, but not the democracy that everyone sells to you: the one that starts at the ballot box and ends on the sofa in front of the news, and sometimes goes out to stand in the street with the Israeli flag when things get really bad. [I’m talking about] the democracy that your parents, teachers, and even the Education Ministry perhaps don’t want you to know about — a more elusive, more threatening, sexier democracy, at least in my opinion. But first I want to start with a short story; I promise it’s related.
Some of you probably remember that just around the corner here, until about two years ago, there stood an unusual neighborhood of small, old houses. It used to be a Palestinian village called Summayl. In the 1948 War, during the heavy fighting that took place in the Jaffa area, the villagers left. Some say they were expelled, some say they fled, but the fact is that at the end of the war they found themselves refugees, outside the borders of the State of Israel, and their homes and lands were confiscated by the state.
The state settled Jewish immigrants, most of them from Arab countries, in these houses. These immigrants were also refugees; they too perhaps fled or perhaps were expelled from their homes, and their property was confiscated by a country that did not want them. In the following decades, they created a new home in Summayl, but they were never given ownership of the houses or the land. In the end, the Tel Aviv municipality and [real-estate] tycoons who purchased the land evicted them and threw them out onto the street without adequate compensation, in order to destroy the houses and build luxury towers in their place for the rich.
This story is reminiscent of the story of the village of al-Jammasin al-Gharbi [in North Tel Aviv] — which became the [Mizrahi] neighborhood of Givat Amal and is now [the luxury apartment complex] Park Bavli — and of many other neighborhoods which also met a similar end.
It’s a sad story, but how is it connected? In my eyes, the thread that connects the first deportation from Summayl in 1948 to the second deportation that ended in 2021 is the same ambition to conquer, expel, and usurp; it is the same choice of greed over people, supremacy, and homogeneity over an existing fabric of life, and anti-democratic force over equal democratic rights. The initial harm was done to Palestinians, then to Jews who are not white or rich enough, and in the end the choice to demolish the neighborhood in favor of building luxury towers contributes to raising the cost of living in Tel Aviv and harms all its residents, and all those who want to live here but cannot afford to.
The essence of what I am trying to say is summed up in a well-known sentence by the fighter for freedom and democracy Dr. Martin Luther King Jr.: “Injustice anywhere is a threat to justice everywhere.” What begins as a localized attack on democracy, a compromise on the principles of justice and equality in a certain place, against certain people, will sooner or later spread, spilling over into every corner, filling every crevice, and growing to monstrous proportions, consuming even the one who created it.
The judicial overhaul of Yariv Levin and Simcha Rothman was born from the demons that Israeli society hid in the closet, and today we are witness to oppressive practices that turn from the domain of minorities into a problem of the entire public — like the water cannon and skunk that were regularly used to disperse demonstrations by Palestinians, Ethiopians, and ultra-Orthodox Jews, and have now become a regular sight for the average Ashkenazi-secular protester, and like the ideology of Jewish supremacy that Palestinians and asylum seekers have felt on their skin since the establishment of the state and can now be felt in every aspect of life here.
I regularly hear people of our generation — which is very active and politically aware — express the feeling that our parents have failed. It’s a harsh statement, but the reason it resonates with so many of us is that it has some truth to it. We feel that our parents have until now chosen to ignore the monster of the dictatorship [that already exists]: a corrupt prime minister who crushes the justice system; manipulative politicians who keep entire communities poor and ignorant so that they continue to vote for them; ministers and mayors who serve greedy tycoons and repeatedly screw over the weakest people.
From silencing critical discourse in the education system to neglecting Palestinian localities and towns in the periphery, to kicking poor people — mainly Mizrahim — out of public housing and onto the street. From the [West Bank] settlements that violate international law and whose residents commit fundamentalist Jewish terrorism, to the expulsion of Palestinian communities from Area C, to decades of military occupation over an entire people that puts us all in a nightmarish cycle of blood in which everyone is a murderer and everyone is murdered.
Injustice will always spread. The Garin Torani [religious-Zionist cells that aim to Judaize areas inside the Green Line] that yesterday ignited riots between Jews and Palestinians in “mixed cities” is today inciting violence against the LGBT community. After publishing plans for the elimination of public housing, the Kohelet Forum [a right-wing think tank] moved to support the castration of the judicial system. Male-only [ultra-Orthodox] parties will ultimately promote the active exclusion of women from the public sphere. Settler fascists who were educated in the regions of brutal occupation and Jewish supremacy — such as [Itamar] Ben Gvir, [Bezalel] Smotrich, and [Simcha] Rothman — will spread exactly the same Jewish supremacy from their seats in the Knesset.
The reality is that the vast majority of people in the previous generations chose to turn their backs on these ongoing events. Maybe because they didn’t think they were affected, or maybe because there is something comfortable in indifference. I want to believe that our generation will be different, even a little different.
We are entering adulthood at a time of great upheaval, and I see with my own eyes that many of us are actively shaping these events. We read, we talk, we question the dominant narratives pumped into us by the Education Ministry, and most importantly, we go out into the streets and shout that there is no such thing as a half-democracy. We will not be satisfied with the semblance of equality, with the fragrance of human rights, with the unrealized promise of freedom of expression. We demand: democracy or rebellion.
Ultimately, the judicial overhaul was born out of indifference — toward injustice and toward the cries of minorities. It was born out of the unwillingness of even those who call themselves the left to recognize their privileges and extend a hand of reparation to disenfranchised communities.
For me, the last few months have been a period of awakening, of diving into intense activism, and, perhaps even more importantly, of learning from people whose experiences and struggles were previously invisible to me. The same learning that the Education Ministry considers dangerous enough to prohibit from taking place in schools today — lest, God forbid, you see beyond the narrow worldview that was fed to you.
Political activism is exhausting and discouraging at times, but also hopeful. Today, with you, I am full of hope that our generation will leave behind indifference, alienation, partisanship, and turning a blind eye, and replace them with with solidarity, mutual care, and a deep concern for justice, freedom, equality, and all the values upon which a true democracy is built for all.
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Supporting Israeli democracy.
Resolved by the House of Representatives (the Senate concurring), That it is the sense of Congress that —
(1) democracy is at the core of the special relationship between the United States and Israel;
(2) Congress opposes actions that undermine Israel’s future as a Jewish, democratic state;
(3) Congress stands with all Israelis seeking to defend liberal democracy, judicial review, and independent political institutions acting in a system of checks and balances.