While reading Mika Hackner’s “Will Israel Ban Political Parties?” (August 10, 2023), I first assumed it was a parody written by supporters of judicial reform to deride its opponents. Alas, I was mistaken, and the author apparently believes that elimination of the “reasonableness clause” will precipitate the mass banning of disfavored political parties. Goodness.
The reasonableness clause was a power grab by Israel’s Supreme Court 30 years ago. It unilaterally conferred on it the right (if not obligation) to invalidate legislation, government policies and even appointments based not on a conflict with an existing law but simply based on what the justices deemed “reasonable.” Such a standard exists nowhere else in the world, as it purports to substitute the judgment of unelected justices for the judgment of the people’s representatives. Its application to the law governing the admissibility of political parties is quite telling.
The author neglected to mention that the 1985 amended law that banned any party that denied Israel’s existence as a Jewish and democratic state, as well as any party that “incited racism,” was legislation crafted specifically to disallow Rabbi Meir Kahane’s Kach Party from running in the next election. At the time, Rabbi Kahane was a member of Knesset. As with most laws tailored to a specific person or organization, it is inherently flawed and has been, shall we say, unevenly applied. In essence, the law has never been followed but has been applied based on the Court’s subjective vision of reasonableness.
Such a law would never pass muster in the United States, and not merely because of constitutional objections. It would be voided on grounds of vagueness. What is racism, and who are the different races in Israel against whom one cannot incite? Thus, the court bans parties that purport to incite “racism” against Arabs but never parties that incite “racism” (indeed, sometimes a party’s entire platform) against Haredim. How does the law define a “Jewish” state? How does the law define “democracy”? If one opposes a “judicial dictatorship” wherein a handful of justices decide the law, determine government policy on every conceivable issue, and vet every government appointment, is that pro-democracy or anti-democracy?
The absurdity is obvious. Imagine such a law in an American context. Democrats would sue to ban Republicans who oppose affirmative action as racists, and Republicans could sue to ban Democrats who support affirmative action as racists.
Worse, the court has only applied the law and banned parties (Kach) or individuals (Michael Ben Ari) who are right-wingers—but never on the left. In other words, it was deemed unreasonable for Ben Ari—who had already served four years in the Knesset—to run again in 2019, a decision the Jerusalem Post’s Lahav Harkov called at the time “unprecedented” and difficult to explain. Yet, the same court has repeatedly allowed the anti-Zionist, anti-Israel and certainly anti-Israel as a Jewish state Balad party to run for election, notwithstanding that several of its members, including its founder, have been convicted of spying for Hezbollah and aiding terrorists.
Why didn’t the court apply the law and ban Balad? It deemed it “unreasonable,” as it is unreasonable to ban any party on the left wing of Israeli politics, even the radical anti-Israel left. I might think the law itself is ridiculous (I do) but that is the law. When the Supreme Court of Israel chooses to disregard the law when it suits its political agenda, it is no longer acting as a court but as a super-legislator, super-executive and super-judiciary. In other words, as a judicial dictator.
That strikes me as unreasonable, as well as undemocratic. The repeal of the reasonableness clause was thus overdue and obvious. The current concern in Israel is that the court will invalidate the repeal or just ignore it and establish a new legal doctrine called the “We Just Don’t Like It” clause, pursuant to which they will continue to run roughshod over Israel’s democracy just because they “don’t like something.” People, like institutions, do not usually give up their power without a fight.
That demonstrates the extent to which Israel’s judicial system has become unmoored from any sensible or equitable function in this democracy. The reform movement (which, by the way, I support, if you could not tell) has exposed the reality that Israel’s unelected judiciary simply utilizes laws and implements or ignores them based only on their political agendas and policy predilections. That so undermines the viability and substance of elections that it doesn’t much matter who runs or wins.
Personally, I would allow all parties to run—right, left and center—but no honest court should ban parties it deems anti-democratic while approving parties that are anti-Jewish. That is the problem in a nutshell. Said another way, if the Supreme Court had a majority of Haredi justices 25 years from now and it banned secular political parties because their participation in a Jewish government was deemed “unreasonable,” the streets would be full of the same protesters demanding the repeal of the reasonableness clause. And rightly so.
Repealing the reasonableness clause and passing future reforms that limit the court’s jurisdiction to cases, controversies and the interpretation of statutes, as well as changing the judicial selection process, can only preserve and strengthen Israel’s democracy. All else is fearmongering by those afraid of losing power because they keep losing elections.
Rabbi Steven Pruzansky, Esq.
Modiin, Israel
