Opinion: Don’t look to the right or left — empower the people
With his newly formed coalition, Israeli Prime Minister Benjamin Netanyahu’s government is aiming at the judiciary, particularly the Supreme Court. For years the Israel Supreme Court has been asserting a greater role for itself and even declaring itself the arbiter of the legality — if Israel had a constitution we’d say constitutionality — of laws passed by the Knesset (Israel's parliament).
This judicial encroachment has irked the right-wing because the court has been promoting leftist positions for years. Now, with a more stable coalition, the government wants to overrule the courts with a simple majority vote of the Knesset, making the Knesset the supreme authority. This has caused an uproar in the judiciary, among seasoned bureaucrats and leftist activists.
Numerous political analysts, commentators and opinion makers have chimed in giving their perspectives on what’s been happening. The conventional view is that the right-wing is pushing back too forcefully and creating an imbalance of power.
Author and Israeli academic, Micha Goodman, makes for a good example of the mainstream analysis. In an interview with Daniel Gordis, he explains the history of the conflict between the two branches of government. His analysis of the current reform is fixed on the spectrum of right-left, conservative versus the “messianic-right” as he refers to them. This will, unfortunately, make the problem more difficult to solve.
Instead of a left-right perspective, we ought to look at it from a top-down, centralization vs decentralization perspective. The situation then looks quite different and more hopeful.
In the current discussion of who should be able to overrule who, the Knesset and the Supreme Court are simply two groups of elites who claim to either speak in the name of justice, or in the name of the people, neither of which is truly accurate.
The dispute, then, is really between the two most central authorities arguing over who is the final authority. How nice. Since one faction is currently right-wing and the other left-wing, it appears to be a zero-sum political struggle. Each side's supporters go and yell in the streets that their faction should have more power at the expense of the other.
But why should the final authority rest with either of these two small groups of people? That’s the question that arises when you view the situation as a conflict between concentrated power vs diffused power instead of “left vs right”.
Once that question is asked, the answer becomes more apparent — the final authority should be the people. This can be done either by permitting the Knesset to overrule the Supreme Court but only by a supermajority (⅔ majority) of the Knesset, or by simply having a referendum and letting the people decide.
For example, if the government would pass a law in the Knesset, but the Supreme Court rules that it violates the Basic Law (Israel’s weak equivalent of a constitution) the Knesset could overrule that decision if ⅔ of the Knesset members vote to overturn the ruling. This would ensure that an overturn has significant support in the Knesset and not just in the government. In the United States, we would call this “bipartisan support”. Alternatively, a nationwide binding referendum of the voting population could be held to overrule the court.
Instead of trying to slice the pie in a different way so the governing elites have the upper hand against the judiciary elites, we should take the opportunity to empower the people — to show both factions of the ruling class who is the ultimate authority.
Micha Goodman, like so many others, continues to view the country's governance as something that is reserved for the ruling class. He suggests that if the state’s institutions were split in a showdown between the judiciary and the government, the country could collapse. “It's not that we'd have no government; we'd have no country," he remarked conflating the country with the government. That’s a dangerous (and false) notion. That false belief is often used by totalitarian regimes to justify their tyranny in order to preserve the state’s institutions for, in the regime's view, without the state there is no country.
This is obviously not the case since for a free country it’s supposed to be the people who make up the country and not the state government and its institutions — the state is an outgrowth of the people. In Israel’s context, the land was the Jewish people's whether or not they had a state, even when they were just a collection of tribes with no central government. In an American context, this idea is expressed with the words “We the people.”
Mainstream analysis simplistically presents the issue as right versus left making it a zero-sum conflict. Instead, we ought to look at the issue of how much concentration of power should be tolerated and reassert the people's role in determining policy.
