That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

The best-known example is the ill-fated experiment with directly electing the prime minister in the 1990s, which was repealed a decade later. The initial proposal, which also called for directly electing some Knesset members, might have worked. But the hybrid ultimately adopted, under which Israelis voted for an individual as prime minister but a party for Knesset, encouraged many people to split their votes, leaving the prime ministerial candidates’ parties decimated. Prime ministers therefore had to create fragmented coalitions in which their own parties were often a minority, making it harder to govern.

A less known but particularly salient example is a seemingly innocuous reform enacted in 2016. The rule until then was that after an election, the longest-serving Knesset member would temporarily become Knesset speaker until a new government was formed, after which the government would choose a permanent speaker. Under the amendment, the old speaker simply stayed on until a new government was formed and chose a new speaker.

The change seems both trivial and sensible. Why bother with a temporary speaker for a mere few weeks—someone who doesn’t yet know the ropes and will be gone before he learns them—when an experienced speaker could just serve a few weeks longer?

Yet this picayune change ended up producing the worst constitutional crisis in Israel’s history. This past March, a new Knesset majority wanted to elect a new speaker to further passage of its own hasty amendments to the Basic Laws. The existing speaker wanted to postpone the election until the new government’s composition became clear because once elected, a new speaker is virtually impossible to replace, and an opposition speaker could stymie all the government’s work. This dispute led to the High Court of Justice riding roughshod over the separation of powers by not only creating a new constitutional arrangement in which two speakers would serve simultaneously (though one would be limited to running the vote for a new permanent speaker), but even dictating the second speaker’s identity.

All of this would have been avoided had that seemingly trivial amendment not been passed: The opposition wouldn’t have needed to elect a new speaker, since the old speaker would immediately have been replaced with a temporary one. And there would have been no risk of a speaker in permanent opposition to the government, because a new government would have been able to replace the temporary speaker.

In other words, this seemingly pointless provision embodied a careful balancing act between a new majority’s desire to govern and a government’s need to function, and its elimination sparked a constitutional impasse.

The amendments the new unity government is making to the Basic Laws—meant to create complete parity between Netanyahu and Gantz, as well as ensure that the prime ministry rotates between them in another 18 months—are much more far-reaching. For instance, both the prime minister (initially Netanyahu) and the vice premier (Gantz) will appoint the same number of ministers, and neither can fire the other’s appointees. If either one dissolves the agreement, the other automatically becomes premier. But if one is barred from serving for reasons beyond his control (excluding specified reasons such as serious illness), the second may not become premier, effectively forcing new elections. And so on.

To be fair, some of these grotesqueries stem from Israel’s rampant judicial activism. Specifically, that last-named provision is motivated by the High Court’s explicit threat to disqualify Netanyahu due to his indictments. Under current law, the vice premier automatically replaces an incapacitated prime minister, meaning Gantz would have become prime minister for the entire term, leaving Netanyahu’s bloc—more than two-thirds of the unity government’s members—out in the cold.

Yet many provisions simply reflect the deep distrust between Netanyahu and Gantz. And while some will expire automatically when this Knesset’s term ends, others won’t, planting potential constitutional time bombs for future governments.

Even when alterations to a system of government are carefully thought out, exhaustively debated and not tailored to specific personal needs, history proves that they sometimes fail spectacularly. The risks are all the greater when changes are rammed through hastily, with no time for thought or debate, merely to serve specific political circumstances.

Thus even if these changes are necessary in today’s unusual political circumstances, they must all be carefully reconsidered immediately after the next election, and probably repealed. Because any country tinkers with longstanding constitutional arrangements at its own peril.

This article was originally syndicated by JNS.org (www.jns.org) on April 29, 2020. © 2020 JNS.org

Israel’s High Court created the problem that drove tens of thousands of voters into Benjamin Netanyahu’s arms. The result could be a government willing to enact legal reforms that the court bitterly opposes.

Though Israel’s final March 2 election results still aren’t in, one thing is clear: Prime Minister Benjamin Netanyahu did significantly better than he did in September, and his bloc is close to having enough seats to form a new government. That’s a far cry from saying he’ll actually be able to form one. But if he does, the legal system will be hoist with its own petard—namely, repeated court rulings that, in defiance of the actual law, barred lame-duck governments from doing almost anything of importance.

To understand why, it’s first necessary to understand how Netanyahu’s bloc gained three to four seats since September, all of which went to his own Likud party. Granted, many Israelis either don’t believe the indictments against him or don’t consider them serious enough to justify ousting someone they consider an excellent prime minister, but all those people also voted for him in September.

The tens of thousands of Israelis who switched their votes on March 2 didn’t do so because they used to think Netanyahu was guilty but are now convinced he’s innocent, or because they used to think Netanyahu was a lousy prime minister but are now convinced he’s brilliant. Rather, most are former Netanyahu supporters who grew disgusted with him—enough that they either stayed home or voted for his rival in September.

But they’re even more disgusted by Israel’s third election of the past year and the ongoing inability to form a new government; they’ve become convinced that even a bad government is better than no government. And the anti-Netanyahu bloc had no realistic chance of ever forming a government because too many of its constituent parties refuse to sit at the same cabinet table either with each other or with any of the parties that could potentially be wooed away from Netanyahu. Thus the only way to increase the chances of a government being formed this time around was to give Netanyahu’s bloc the few extra seats it needed.

But why would these voters care so much about having a new government? After all, the country is basically functioning under Netanyahu’s lame-duck government, which remains in office until a new government is formed despite having lost its parliamentary majority last year.

Unlike in America, there’s no such thing as a government shutdown in Israel. Public services continue functioning even without an approved budget because they’re automatically funded every month to the tune of one-twelfth of the previous year’s budget. The army still defends the borders and fights terror. Netanyahu still travels the world expanding Israel’s diplomatic relations.

Nevertheless, there are many things a lame-duck government cannot do. It can’t make appointments, so senior civil-service posts have been empty for a year. It can’t pass a new budget or allocate any funding that wasn’t included in the previous year’s budget, so vital new programs—like the army’s five-year development plan and desperately needed infrastructure projects—have gone unfunded. And vital old programs, including pilot projects to help Israel’s neediest, have shut down because their funding was only approved for a year and a lame-duck government can’t renew it. The government also can’t address the yawning deficit by cutting spending or raising taxes.

To be clear, Israeli law doesn’t actually prevent a lame-duck government from doing any of this. Moreover, as the High Court of Justice admitted in a 2001 ruling, this wasn’t an oversight; the Knesset considered this issue during the state’s early years, but ultimately accepted a public commission’s recommendation against restricting lame-duck governments, lest such restrictions hamper their ability to act in an emergency.

But the court, always convinced that it knows better than the legislature and scornful of that quaint democratic principle which holds that law should be made by elected legislators rather than unelected justices, decided decades ago to overrule the Knesset on this issue. True, lame-duck governments are formally empowered to do anything, it declared, but under other High Court rulings dating to the 1980s, no government action is legal unless the court also deems it reasonable, regardless of what the law says. And the justices, together with the successive attorneys general responsible for enforcing their dictums, have deemed a wide range of actions by lame-duck governments unreasonable.

To understand the absurd lengths to which this has been taken, consider one case now before the court: The government recently created a public commission to probe the Justice Ministry’s handling of police misconduct, but the attorney general nixed it, saying a lame-duck government has no such power.

Granted, the timing was political; Ethiopian Israelis, a community Netanyahu sought to woo, are furious with the ministry for what they see as its tolerance of police brutality against them. But so is every other constituency in Israel—left-wing, right-wing, Arab, ultra-Orthodox, you name it. Excluding the police and Justice Ministry staffers, there’s a wall-to-wall consensus that the ministry is soft on police brutality. So why bar a lame-duck government from a probe that most Israelis consider long overdue?

Adding insult to injury, the court, as always, is politically biased in enforcing its dictum. Back in 2001, for instance, it deemed it reasonable for Prime Minister Ehud Barak’s lame-duck government to reward PLO chairman Yasser Arafat for launching the Second Intifada by offering him most of the West Bank, the Gaza Strip and half of Jerusalem, despite overwhelming public opposition. But doing something all Israelis consider essential, like earmarking funds for new hospitals or roads? Absolutely not.

Had the court simply upheld the law and allowed lame-duck governments to exercise their full powers, Israel would not have accumulated such a long list of unaddressed burning issues over the past year, and a critical mass of anti-Netanyahu voters wouldn’t have concluded that any government—even one headed by a man under indictment—was better than none at all. In other words, with its own hands, the court created the very problem that may now result in a government willing and able to enact legal reforms that the court itself bitterly opposes.

Reasonable people can disagree over whether that outcome would be good or bad for Israel. But it would undeniably be poetic justice.

This article was originally syndicated by JNS.org (www.jns.org) on March 4, 2020. © 2020 JNS.org

Although Israeli Prime Minister Benjamin Netanyahu was favored to win his Likud party’s leadership contest on Dec. 26, the magnitude of his victory surprised many observers. Despite his three indictments for corruption and his failure to form a government following two elections last year, 72 percent of primary voters chose him over a popular and respected challenger. To understand why, it’s worth examining a High Court of Justice ruling handed down the following week.

The court was asked by 67 academics, former defense officials and cultural figures to rule that due to the indictments, Netanyahu should be barred from forming the next government, even if Likud and its allies win the most Knesset seats in March’s election. The justices dismissed the petition as premature since the election results may render the question moot.

What they emphatically didn’t say, however, is that who the voters elect is none of their business, given that no existing law bars someone under indictment from forming a government, and the only relevant legislation implies the opposite: It requires serving prime ministers to resign if convicted.

Instead, by deeming the petition “premature” rather than non-justiciable, they made it clear that they would consider overturning the voters’ decision should the election results make the question relevant. Indeed, the ruling said so explicitly: The petition raises “an important issue of principle” that “touches on the principle of the rule of law, the integrity of elected officials and the public’s trust in government institutions … and therefore, there’s nothing to the respondents’ argument that the issue isn’t justiciable.”

Though I backed Netanyahu’s challenger in the primary, you shouldn’t have to be a Netanyahu fan to find this ruling shocking. The right to choose the country’s leadership in free and fair elections is the most fundamental democratic right of all. Thus the fact that the court considers itself entitled to overturn the voters’ choice without any authorization in law, merely because it disapproves of it, shows just how far Israel has slid down the slope from a democracy with a strong and independent court system to a judicial dictatorship. And while the primary predated this ruling, thousands of others over the past three decades have sent the same message.

Time after time, the legal system has vetoed elected governments’ policies not because they violated any law, but because the attorney general or the justices deemed them “unreasonable”—a decision actual democracies leave to the voters. Or contrary to some “right” that not only doesn’t exist in Israel’s Basic Laws, which the court (wrongly) treats as a constitution, but was explicitly omitted from them. Or contrary to “the fundamental values on which our system is based,” even when said values, like judicial supremacy, are diametrically opposed to the actual principles of Israel’s system of government (which, like its British model, is based on parliamentary supremacy).

Moreover, the legal establishment has a long and sordid record of submitting unwarranted indictments to oust ministers it dislikes. One particularly egregious example was Yaakov Neeman, who was forced to resign as justice minister in 1996 after being charged with perjury over minor mistakes in affidavits—like a date being given as 1992, rather than 1991—that he himself discovered, disclosed and corrected. As the trial court said in dismissing the case, indicting people for perjury over errors they voluntarily corrected would simply discourage others from admitting mistakes, thereby impeding the courts’ ability to discover the truth.

Thus it’s no surprise that only 55 percent of all Israeli Jews trust the Supreme Court, with a whopping 78 percent of rightists deeming it politically biased, while fewer than half of all Israeli Jews trust the attorney general. And this, judging by discussions with fellow Likud members before the vote, was a key issue in the primary.

Netanyahu didn’t win in a landslide because he has been an excellent prime minister, though most Likud voters (myself included) think he has. And he certainly didn’t win because Likud voters approve the behavior that led to his indictment; they find it repulsive, even if many doubt that it’s criminal (I’m in the minority in considering one of the indictments serious).

Rather, the most common argument I heard was simply this: “Ousting Netanyahu would mean letting them win.” In other words, Netanyahu the man no longer matters; he has simply become a symbol of the much larger struggle to regain the fundamental democratic rights that the legal establishment—the courts, the attorney general and the prosecution—has steadily usurped over the past three decades.

It may seem strange that voters should make their stand over a man facing serious indictments for corruption. But he has become the focal point of this battle precisely because the issue his case poses is so clear and simple: Do voters still have the right to elect whomever they please, even if their choice appalls other Israelis? Or can the legal establishment use indictments to overturn their choice of prime minister, even though that the law gives it no such right?

In fact, ironically enough, the charges against him actually increase Netanyahu’s value as a champion in this battle because they make legal reform vital to his own self-interest. Previously, many politicians, including Netanyahu himself, feared to enact legal reforms because the aforementioned false indictments frequently targeted those who, like Neeman, sought to do so. But now, curbing the court’s power is Netanyahu’s only chance of escaping jail; otherwise, even if the Knesset grants him immunity from prosecution, the court will certainly overturn its decision.

Anyone who claims to care about “the rule of law” and views Netanyahu’s potential election as a devastating blow to it ought to think long and hard about this: Millions of Israelis are willing to vote for a possible criminal because they see it as their only chance of curbing the legal establishment’s takeover of Israel’s democracy.

Had the courts not so consistently substituted their own will for that of the voters, Israel would never have reached this pass. And unless its excesses are curbed, the situation will only get worse, regardless of who wins the next election.

This article was originally syndicated by JNS.org (www.jns.org) on January 8, 2020. © 2020 JNS.org

On June 24, Haaretz columnist Amira Hass compared the case of Mahmoud Qatusa to the infamous Leo Frank case in Atlanta. The comparison was suggested by Qatusa’s lawyer, but Hass enthusiastically seconded it.

One day later, the dramatic denouement of Qatusa’s case proved them both wrong. And the story convincingly refutes claims that Israel has become increasingly racist and “anti-democratic” because it shows that the sine qua non of a flourishing democracy is alive and well—not the absence of problems, but the existence of self-correcting mechanisms to resolve those problems.

To understand why, a recap of both cases is needed. Frank, a Jew, was convicted in 1913 of murdering a 13-year-old Christian employed at the Atlanta factory where he was superintendent. Rumors said the girl was also raped. During the trial, crowds outside the courthouse shouted “Hang the Jew”; he was duly sentenced to death. Multiple appeals were rejected. But Georgia’s governor, disturbed by flaws in the case and the anti-Semitic incitement, commuted the sentence to life imprisonment. Two years later, vigilantes broke into Frank’s prison and murdered him.

Qatusa, a resident of the West Bank village of Deir Qaddis, was arrested on May 1 and held without bail on suspicion of raping a 7-year-old girl from the nearby Jewish settlement of Modi’in Ilit, where he was a janitor at the girl’s school. After his indictment hit the headlines on June 17, social media erupted with anti-Arab incitement, including from several politicians who accused him—with zero evidence—of intending the rape as a terror attack.

But then, Israeli democracy’s self-correcting mechanisms kicked in. Senior officials from Israel’s independent police and prosecution, who weren’t previously involved in the case, reviewed it and discovered numerous problems. The country’s free press investigated and reported additional problems. On June 25, after top law-enforcement officials concluded the evidence was insufficient, charges were dropped, and Qatusa was freed.

Additionally, while anti-Arab racism undoubtedly exists in Israel, it doesn’t seem to have been a factor in Qatusa’s case. Even the senior legal officials who withdrew the charges remain convinced that a rape occurred and that some evidence points to him, just not enough for criminal conviction. Moreover, he was just one of several Palestinians employed at the girl’s school; many others worked elsewhere in the settlement. Modi’in Ilit residents regularly patronized Deir Qaddis garages and relations between the towns were good, as evidenced both by the Modi’in Ilit residents who publicly protested Qatusa’s innocence and by those who danced at the wedding of the Deir Qaddis mayor’s son on June 13.

The case did highlight one real problem: the notorious incompetence of the police’s West Bank division. Back in 2011, Haaretz reported that the division consistently failed to follow basic investigative procedures; consequently, “case after case—against settlers and Palestinians alike—is either closed without going to trial or thrown out of court.” Evidently, not much has improved since then.

But no country anywhere is devoid of problems. What distinguishes democracies from dictatorships is that democracies have self-correcting mechanisms to try to address these problems. And Qatusa’s case shows that despite a real problem of police incompetence, Israel’s self-correcting mechanisms work; consequently, Leo Frank-style travesties of justice don’t happen. Nor, incidentally, do lynchings.

This is also worth remembering with regard to another case that recently made headlines in Israel—the shooting of 18-year-old Solomon Teka on June 30 by an off-duty policeman trying to break up a fight in a park. In this case, racism can’t be dismissed as a factor; many Israelis don’t believe that the incident would have ended with Teka dead had he not been an Ethiopian Israeli. Moreover, police have a history of racism against Ethiopian Israelis: See, for instance, the brutal beating of soldier Damas Pakada in 2017 (in that case, the abusive cop was at least dismissed from the force; Pakada later became a decorated officer in the army’s cyber corps).

Once again, the case highlights real problems—not just racism, but police brutality. The latter affects many demographics: Ethiopian Israelis, Arabs, settlers, migrant workers, demonstrators both right-wing and left-wing, etc. And it too often goes unpunished.

But if Teka’s shooting shows that progress in addressing these problems is clearly insufficient, a government report published in April shows that it is nevertheless occurring. Following Ethiopian-Israeli demonstrations against police brutality in 2015, the government appointed an interministerial committee to propose ways to eradicate racism against Ethiopian Israelis. And since 2016, the Justice Ministry has issued annual reports on implementation of these proposals.

The latest report documented insufficient but nevertheless real progress on the critical problem of over-policing. For instance, while arrests of minors overall were down 29.5 percent in 2018 compared to 2015, arrests of Ethiopian-Israeli minors fell 50.4 percent during this period. Ethiopian Israelis are still arrested disproportionately, accounting for 5.4 percent of all minors arrested in 2018 despite constituting only 1.6 percent of the population. But that’s down from 7.7 percent in 2015.

Insufficient but real progress has also been made on other issues, like the percentage of Ethiopian Israelis graduating high school (still low at 62 percent, but up from 35 percent in 2008). Moreover, as former Knesset member Dov Lipman noted, Israelis stuck in traffic for hours due to Ethiopian-Israeli protests over Teka’s death largely reacted with understanding rather than racist outbursts, indicating that racism, though real, isn’t endemic.

No country has ever managed to eliminate racism, and Teka’s case shows that Israel still has a ways to go. Yet at the same time, the Justice Ministry report shows that democracy’s usual self-correcting mechanisms—demonstrations, media reports, political action, etc.—are having an impact.

Democracy can’t turn human beings into angels, and all democracies fall short of their highest ideals. But they remain much better than non-democracies at creating mechanisms to counter the harm done by our worst impulses, and thereby, over time, to improve society as a whole.

Thus, the true measure of whether a democracy is functioning properly isn’t whether problems exist; they always will. Rather, it’s whether democracy’s self-correcting mechanisms are working effectively to mitigate those problems. And by that standard, Israel’s democracy is doing just fine.

This article was originally syndicated by JNS.org (www.jns.org) on July 17, 2019. © 2019 JNS.org

Israeli Prime Minister Benjamin Netanyahu’s unexpected failure to form a new government, which indicates that his political end may be nearing, has prompted much speculation about what changes a post-Netanyahu era might bring. But here’s one thing that won’t change—the right’s efforts to reform the legal system. And nothing better explains why than the about-face of Finance Minister Moshe Kahlon, previously one of the system’s ardent defenders.

Reform efforts have been widely depicted for months as nothing but a way for Netanyahu to avoid standing trial. Thus many people seem to think they’ll dissipate once Netanyahu goes. As columnist Chemi Shalev wrote in Haaretz on May 28, “Without Netanyahu and his urgent need to avoid indictment, the right-wing crusade against Israel’s Supreme Court in particular and the rule of law in general would falter … without Netanyahu’s personal stake and drive, even a right-wing coalition would find it hard to muster the anti-court majority needed for such a drastic constitutional upheaval.”

In fact, the opposite is true. Legal reform has long enjoyed widespread support in both Netanyahu’s Likud and other rightist parties; the main reason it never happened is that Netanyahu himself repeatedly stymied it throughout his decade as prime minister. His sudden change of heart indeed stems from his own legal problems, but that isn’t true of most rightist politicians or of rightist voters.

Kahlon used to be a major exception. He entered the cabinet in 2015 vowing to thwart any effort to curb the legal system’s power. In his coalition agreement with Likud, he even demanded and received veto power over such legislation. And he exercised his veto repeatedly, inter alia killing bills to change the judicial appointments system and to let the Knesset reenact legislation overruled by the courts.

But after April’s election, Kahlon’s Kulanu Party signaled that it would no longer thwart such efforts. As Revital Hovel reported in Haaretz last month, there are two reasons for this.

First, even Kulanu voters—the most moderate segment of the center-right electorate—objected to Kahlon’s defense of the legal status quo. In April’s election, Kulanu dropped from 10 Knesset seats to four, and the party’s internal polling found that its repeated vetoes of legal reforms were a major reason why. Many rightists simply won’t vote for anyone opposed to legal reform.

Second, Kahlon got mugged by reality. As finance minister, he acquired firsthand experience of the way the Supreme Court prevents governments from governing by repeatedly overturning decisions it deems “unreasonable”—a judgment other democracies leave to voters.

Most dramatically, the court overruled Kahlon’s flagship policy on what even Hovel, a court supporter, admitted were “novel grounds.” Kahlon won election by promising to lower Israel’s cost of living, particularly its astronomical housing prices. He therefore enacted a special tax on third apartments, arguing that making it more expensive to buy housing for investment purposes would cool demand and thereby lower prices.

The tax was part of the annual Economic Arrangements Law, an omnibus bill enacted together with the state budget because the government deems its provisions necessary to meet budgetary targets. It passed all necessary votes in both the Knesset Finance Committee and the full Knesset. Nevertheless, the court overturned it, claiming the legislative process was flawed.

Here, according to the ruling, are the justices’ objections: The Finance Committee’s overnight discussion wasn’t in-depth enough. Knesset members didn’t receive the bill’s final revisions in time, so they relied on treasury officials’ oral explanation of the changes. Government representatives, the committee chairman and some Knesset members repeatedly urged other committee members to stop asking questions and just pass the bill already. In short, the court said, the process was characterized by “haste, pressure and panic,” thereby depriving MKs of the chance to form an “educated opinion” of a bill with significant financial ramifications.

Or in other words, as anyone familiar with the Knesset would know, it was situation normal for the final stage of the annual budget debate, in which MKs must approve thousands of pages of legislation within days to meet the end-of-year deadline (I know this firsthand, having covered the proceedings for years as a reporter). The budget passes less through reasoned debate than through standard legislative horse trading, in which all MKs support certain items they dislike so that other MKs will support their budgetary priorities.

Nevertheless, the court decided that in this particular case, standard practice had suddenly become so unreasonable as to be unconstitutional, and overturned the law. That effectively killed Kahlon’s tax, which, like many tax hikes, was too unpopular to pass outside the annual budgetary horse-trading.

Kahlon also repeatedly fell victim to another of the Supreme Court’s unique interpretations of the “rule of law”—that a government has no right to representation in court if the attorney general disagrees with its position. For instance, as finance minister, Kahlon is ostensibly in charge of taxes. Yet the court overruled his decision to maintain differential taxes on cigarettes and rolling tobacco without his position even being granted legal representation.

The same happened when the court ordered Kahlon to raise the price of price-controlled milk (a vestige of Israel’s socialist past). To be clear, I consider price controls bad policy, especially when, as in this case, higher production costs probably justified raising prices. But by law, the price of price-controlled milk is set by the finance and agriculture ministers, not the attorney general or the court. Thus by overruling Kahlon on the grounds that his decision was unreasonable, the attorney general and the justices effectively usurped the minister’s legal authority and forced him to violate his campaign promise to keep prices down, all without his position even being represented in court.

After more than three decades of such rampant judicial activism, too many rightist legislators and voters have similar stories of policies they cared about being nixed not because they violated any law or constitutional provision, but merely because unelected justices or an unelected attorney general decided to substitute their own policy judgments for those of the elected government.

That’s what’s truly driving the movement for legal reform. And it won’t disappear when Netanyahu does.

This article was originally syndicated by JNS.org (www.jns.org) on June 5, 2019. © 2019 JNS.org

Note: This piece is a response to an essay by Haviv Rettig Gur

Like Haviv Rettig Gur in “How and Why Israelis Vote,” I, too, think the advantages of Israel’s parliamentary system outweigh its disadvantages, and for essentially the same reason: because it keeps a great many people in the political system who would otherwise remain outside it.

Critics of the system’s plethora of small parties—as Gur notes, no fewer than 43 parties have been vying for Knesset seats in this year’s election—maintain that it should be streamlined and redesigned so that only big parties would be able to enter the Knesset. In that case, the critics argue, people who currently vote for small parties would simply switch their votes to large ones.

No doubt, some voters would do so—but many others would not. There are at least three groups among whom turnout would plummet if niche parties became by definition unelectable: Arabs, Ḥaredim (including some ḥaredi Zionists), and the protest voters who, in every election, propel a new “fad” party into the Knesset. (In 2015, as Gur writes, the fad party was Kulanu. This year, it’s been Moshe Feiglin’s pro-marijuana, libertarian, right-wing Zehut party, which Gur doesn’t discuss although polls have consistently showed it gaining five to seven seats.)

Together, these three groups constitute roughly a third of the country, and all three are to some extent alienated from the mainstream. If they were no longer even participating in elections, that alienation would grow.

Why does this matter? In answering that question, I’ll focus mainly on Ḥaredim and Arabs, the most significant and also the most stable of the three groups (protest voters being by nature amorphous and changeable).

It matters primarily because people who cease to see politics as a means of furthering their goals are more likely to resort to violence. Indeed, it’s no accident that most political violence in Israel has issued from quarters outside the electoral system.

Among Ḥaredim, violent anti-government demonstrations take place in neighborhoods whose residents don’t vote, not in neighborhoods that vote en masse for United Torah Judaism. As for the violent fringe of the settler movement, it doesn’t vote for pro-settlement parties like Jewish Home or even the extremist Otzmah Yehudit; it doesn’t vote at all. Instead, as revealed in documents made public by the Shin Bet security service in 2015, it seeks to replace democracy in Israel with a religious monarchy.

Among Israeli Arabs, those in eastern Jerusalem—most of whom cannot vote since they are permanent residents rather than citizens—commit a proportionately much greater amount of violent acts than do other Israeli Arabs. Similarly, the northern branch of Israel’s Islamic Movement, which boycotts elections, foments far more violence than the southern branch, which regularly runs as part of the United Arab List.

True, there is one striking counterexample: the Balad party, whose past members of Knesset (MKs) have included one who fled the country to avoid charges of spying for Hizballah, one convicted of smuggling cellphones to jailed terrorists, and one convicted of threatening fellow Arabs serving in the police. But I can’t think of any other significant exceptions.

By contrast,niche parties not only reduce the incidence of extremist violence but actually help move alienated communities closer to the mainstream.

As Gur observes, the main reason Yisrael Beytenu has risked falling below the electoral threshold in this election is that, as its Russian-immigrant voters have come to feel more at home in Israel, they’ve increasingly switched to more mainstream parties. Another good example is Jewish Home: the principal reason it was polling below the threshold before it hooked up with Otzmah Yehudit is that religious Zionists, too, have migrated to mainstream parties as they have become more integrated.

The same trend is now emerging, albeit slowly, among Ḥaredim. According to Gilad Malach of the Israel Democracy Institute, the proportion of Ḥaredim voting for non-ḥaredi parties rose from 10 percent in 2006 to 17 percent in 2015; this year, Malach expects it to reach 20 percent. One noteworthy sign of the change: in 2018, the ḥaredi city of Bnei Brak elected a city councilman from a non-ḥaredi party; the last time this happened was more than three decades ago, when Bnei Brak still had a sizable non-ḥaredi population.

This shift is propelled primarily by broader changes within ḥaredi society itself, where more and more people are working, attending college, and serving in the army. But it has been facilitated by the presence of ḥaredi parties in the Knesset.

As a Knesset reporter in the 1990s, I watched those parties evolve from caring only about religious issues to speaking out on broader societal ones as well. Their presence in the Knesset—where ḥaredi members advanced to chair powerful committees and became ministers and deputy ministers—meant they couldn’t avoid taking stands on economic, diplomatic, and security issues. This in turn sent a moderating message to their constituents: that Ḥaredim can and should care about Israel’s broader concerns, The logical corollary is that voting on the basis of those broader concerns—that is, voting for mainstream parties—isn’t illegitimate.

Unfortunately,the dynamic is different in the Arab community, where Arab parties routinely win a sweeping majority of the vote. Even as, by many measures, Arab voters have become more integrated in Israeli society, Arab MKs have remained militantly separatist.

Polls over the past few years have repeatedly shown that Israeli Arabs’ main concerns are not the Israel-Palestinian conflict but bread-and-butter issues like crime, housing, and jobs, and that roughly two-thirds of Arab voters want their MKs to join the governing coalition, where they would have more power to address these issues. But the Arab parties have different priorities.

When it comes those priorities, contrary to the picture drawn by Gur, there’s little that distinguishes one Arab party from another. All of them, even the “moderate” Ḥadash-Ta’al, vocally accuse Israel of being an apartheid, criminal state that indiscriminately murders Palestinians; all defend Palestinian terror; and all stridently support maximalist Palestinian demands (including the “right of return,” a euphemism for destroying the Jewish state demographically).

Ayman Odeh, for instance, the chairman of Ḥadash, has refused to condemn Palestinian terror, saying, “I cannot tell the nation how to struggle. . . . I do not put red lines on the Arab Palestinian nation.” In 2015, Odeh went so far as to cancel a meeting with American Jewish leaders because he refused to set foot in a “Zionist” office. (Evidently he makes an exception for the Zionist Knesset.) Ahmad Tibi, the chairman of Ta’al, has written op-eds in American newspapers accusing Israel of running a Jim Crow regime, ignoring the irony of signing these pieces as deputy speaker of Israel’s parliament.

These parties often preemptively declare themselves unwilling to join any government. But they needn’t bother: their embrace of outspokenly anti-Israel positions puts them beyond the pale as coalition partners. It also nourishes feelings on both sides that Israeli Arabs and Israeli Jews are enemies rather than partners who, despite differences of opinion, share common concerns.

Given all this, it’s unsurprising that a 2015 poll found almost half of Arab respondents voicing dissatisfaction with their MKs, or that voting rates among Arabs, unlike among Ḥaredim, are consistently and significantly lower than the national rate. What is surprising, and encouraging, is that according to one recent poll, over 75 percent of Israeli Arabs still consider Knesset representation important. But most would still not consider voting for non-Arab parties. Like many Ḥaredim, they still feel themselves to be a separate community, and want to vote for people with lived experience of their unique circumstances.

What, then,might be done to further the mainstreaming of both haredi and Arab voters? Perhaps counterintuitively, one solution might be to allow even more niche parties into the Knesset.

For a party to gain entry into the Knesset today, as Gur notes, it must win 3.25 percent of the total vote, which in the 120-seat Knesset works out to four seats. If that electoral threshold were lowered to its pre-2015 level of 2 percent (2.4 seats), or even lower, it would become easier for new Arab and ḥaredi parties favoring integration to get elected, join a government, and be in a position to deliver what their constituents want, and thereby to serve as gateways to further integration (just as Yisrael Beytenu and Jewish Home did for their voters).

As it happens, Arab and ḥaredi parties along those lines tried running both in 2015 and again this year, but the four-seat threshold has proved insurmountable.

A lower threshold might also reduce the extortionate power exercised by small parties, vividly described by Gur in his essay. In a government coalition that included several two- or three-seat parties, no single one of them would wield enough electoral clout to mount a challenge to the government’s survival. When, however, every party in a coalition holds at least four seats, it’s easier for one to topple,  or to threaten to topple, the government on its own.

But the foremost reason to reduce the threshold is that making it easier for niche parties to enter the Knesset would give more non-voters an incentive to make their concerns heard through voting. People inside the political system are more likely to feel they have a stake in the country and less likely to resort to violence. In a country as diverse and as contentious as Israel, everyone would benefit from the presence of greater numbers of such people.

Originally published in Mosaic on April 8, 2019