This article originally appeared in the Globe and Mail.
By David Matas and Aurel Braun, August 4, 2023
It is inevitable in democracies that there will be divisions of opinion over what governments do. Sometimes these divisions get heated, with strong rhetoric, demonstrations, and civil disobedience. In Israel, the renowned “Startup nation,“ divisions over judicial reforms currently are particularly heated and the rhetoric is often incendiary.
In a way, Israel is the personification of a Jeffersonian, never-ending struggle for democracy, at times in near impossible conditions, where enemies such as Iran, Hamas and Hezbollah, among others, proudly proclaim their genocidal goal of wiping out the Jewish state. Yet, Israel has not merely endured countless crises but prevailed and built one of the most successful (though imperfect) advanced democracies in the world. Israel’s first prime minister, David Ben-Gurion, famously quipped that “in Israel, in order to be a realist, you must believe in miracles” – a principle that has become a national ethos. Perspective, therefore, is crucial.
Undoubtedly, the images and debates in Israel are jarring, and extremist statements from various quarters are repugnant, but popularly elected governments do at times adopt minority positions. These do not necessarily lead to apocalyptic outcomes, or, on their own, undermine the democratic nature of the state. On the contrary, these furious debates and unpopular government actions are part of the normal, even if not ideal, workings of democracy. Desirable consensus might be much easier once the temperature is lowered. Fortunately, Israeli democracy has consistently shown itself to be spectacularly resilient and self-correcting.
Tyrannies are different. Outsiders should be concerned about the inner workings of tyrannies, because insiders are silenced. In tyrannies, human-rights activists become human-rights victims. The only people who can safely oppose what tyrannies do are outsiders.
Democracies can resolve their own internal disputes without external pressure. Given their pluralistic nature, they do tolerate external advocacy, but outsiders should voluntarily refrain, or at least be very careful, about passing easy judgment.
These considerations may seem common sense. Unfortunately, in this case as in many others, Israel is an exception. Witness the global turmoil over proposed and enacted judicial reforms in Israel, with all sorts of outsiders expressing barbed opinions on the matter. For instance, outsiders could follow with interest the fierce debate in France about raising the age for pension eligibility. Yet, for outsiders to get involved in the issue, let alone claim France has ceased to be democratic because the government has adopted an unpopular position, is inappropriate.
The reforms themselves, like many government proposals in democratic states, have plausible arguments both for and against. Evaluating those arguments, even on an abstract basis, requires some knowledge of Israeli law.
For instance, there is heated debate in Israel about a provision in a just-adopted law that prohibits the judiciary from using a reasonableness standard of review for assessing laws or government action. The implications are complex, particularly as the courts still have some oversight over government decision-making due to the correctness standard of review principle, which is considered a stricter standard. This is a nuance best understood by those familiar with Israeli law.
Moreover, the debate about proposed and enacted reforms has a context in which Israelis are deeply engaged, but outsiders not so much. In democracies, politics can serve as a type of theatre. That is, in Israel, debates about judicial powers are ensnarled in or camouflage surrogate issues. The judiciary has made some rulings against the Orthodox – about their military service and about their establishing residences in the West Bank. There are continuing corruption procedures against Prime Minister Benjamin Netanyahu. Debates about judicial reform have become debates about what the judges could, should and would do under the old law, the reformed law and the proposed reformed law on these issues. Again, outsiders are ill-placed to get involved in these debates.
It might seem today that it would be a miracle if tomorrow Israelis would agree on the content of judicial reform. A consensus on Israeli judicial reform would, in reality, be the best solution. If Israelis continue to believe in miracles, it can still happen.
Outsiders should do nothing to prevent it from happening. The involvement of outsiders hardens positions on both sides, making a consensus solution more difficult. For outsiders, the best position on enacted and proposed Israeli judicial reform is forbearance.
David Matas is a Winnipeg lawyer and senior counsel to B’nai Brith Canada. Aurel Braun is a professor of international relations and political science at the University of Toronto.
