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By Chris Trotter*
Beginning in late January, Israel has been rocked by a series of massive weekly protests against planned judicial reforms. Concentrated in Tel Aviv, Israel’s former capital and easily its most secular city, these protests have become increasingly disruptive. So much so that the far-right coalition government, led by Benjamin Netanyahu, appears poised to suppress them by force. Political commentators in Israel have begun to speak of the protests as evidence of a fundamental disagreement concerning the core nature and purpose of the Israeli state. About the only thing both sides can agree on is that Israel cannot survive such deep-seated divisions.
The strangest aspect of the Israeli protests, from a New Zealand perspective, is that the judicial reforms proposed by Netanyahu’s government would confer upon Israel’s parliament, the Knesset, powers which the New Zealand House of Representatives has not only exercised for decades, but which have also been seen, by an overwhelming majority of Kiwi legislators, as critical to the health of New Zealand’s democracy.
The problem which the judicial reforms proposed by Netanyahu and his far-right colleagues seek to address is the Israeli judiciary’s current power to restrain, or, in extremis, overrule, the actions of both the Israeli Executive and the Knesset. In other words, these reforms seek to confer upon the Knesset what New Zealand’s House of Representatives already possesses – and jealously guards – parliamentary sovereignty. Netanyahu wants the Knesset to become what our House of Representatives already is: the highest court in the land.
What makes this whole constitutional stoush even more interesting, from a Kiwi perspective, are the similarities between New Zealand and Israel. Neither country has a written constitution, preferring to be guided by a set of basic laws and rights. Israel and New Zealand also lack an upper chamber empowered to initiate, review and delay legislation. This unicameral system gives the legislators of both countries the sole right to make the laws. Both countries also operate under an electoral system of proportional representation– although, to be fair, Israel has a much purer variant of PR than New Zealand’s MMP. Israeli MPs do not represent electorates, all Knesset seats are allocated from party lists. Israel’s representation “threshold” (the share of the popular vote that must be won before seats are allocated) is 1.5%, compared to New Zealand’s 5%.
Where the two legislatures diverge, however, is over the status of the law conferring fundamental human rights upon their respective citizens. Legislation and/or Executive Orders which contravene Israel’s “Basic Law: Human Dignity and Liberty” may be (and have been) struck down by Israel’s Supreme Court. The author of the “New Zealand Bill of Rights Act”, Labour’s Geoffrey Palmer, wanted New Zealand’s highest court to be invested with similar authority, but so deeply entrenched is the principle of parliamentary sovereignty in this country that he was unable to persuade his colleagues to confer such decisive constitutional powers upon New Zealand’s judges.
Apart from the very obvious objection that unelected judges should not be given the power to overrule the elected representatives of the people, New Zealand legislators’ refusal to countenance judicial intervention can be traced back to two deeply ingrained Kiwi prejudices.
The first is class hostility – a phenomenon intimately bound up with New Zealanders long-standing self-identification as egalitarians. Judges are (rightly) perceived by “ordinary” New Zealanders as being drawn overwhelmingly from the upper-echelons of New Zealand society. The objection to these “posh bastards” overruling a Parliament made up of “ordinary people” like themselves dates all the way back to the Liberal Government of 1891-1912 and its presiding populist master, Richard “King Dick” Seddon. The rise of the Labour Party and the growing parliamentary strength of its working-class caucus only dug the anti-posh prejudice deeper into the nation’s collective political psyche.
The second factor is racial hostility. Repeated attempts by dispossessed Māori Iwi to seek redress through the New Zealand courts, though mostly unsuccessful, cannot have failed to plant in the minds of Pakeha legislators the necessity of preserving Parliament’s privileged status vis-à-vis the Judiciary. The idea that the achievements (and the depredations) of the “Settler State” might one day be found wanting by the courts, can only have aroused the most atavistic fears among Pakeha politicians of every ideological persuasion. What had been won by the gun, must never be reclaimed by the gavel.
Just how animated this racial rationale for parliamentary sovereignty remains was demonstrated very forcefully by the House of Representatives’ reaction to the Court of Appeal’s 2004 judgement on the foreshore and seabed. Labour Prime Minister Helen Clark, and her Attorney-General, Margaret Wilson, lost little time in reminding Māori, and the Judiciary, exactly who controls New Zealand.
The bloody circumstances of the State of Israel’s birth in 1948, and the mutually hostile ideological and religious groups that assisted it, encouraged Israel’s legislators to deny their parliamentary opponents the opportunity – albeit at some distant point in the future – to transform their narrow vision of Israel into law. The Basic Law relating to human dignity and liberty was, therefore, to be interpreted and enforced by a highly-qualified and non-partisan Judiciary. That way, no party, or collection of parties, commanding a temporary Knesset majority would be able to legislate their way into a position of permanent dominance.
The wise old Socialist-Zionists who founded Israel were only too aware of how quickly extremist minorities can become proscriptive majorities. They saw the Supreme Court’s gavel as their best protection against the extreme Zionists’ legislative guns.
Unsurprisingly, young, well-educated, and increasingly secular Israelis are terrified by the plans of Netanyahu (himself under indictment for corruption by Israel’s courts) and his far-right allies to recreate in Israel the soft authoritarianism perfected by Hungary’s Viktor Orban. They are only too aware that moves to limit the authority and independence of the courts are proof positive that the shift to “illiberal democracy” has begun. The moment the defence of human dignity and liberty is placed in the hands of a temporary parliamentary majority of religious and nationalist extremists, there can be little doubt that neither principle has long to live.
Nor is it any longer an axiom that New Zealand parliamentarians are united in their determination to preserve the House of Representatives as New Zealand’s highest court. With so few MPs coming from working-class backgrounds, and so many of them in possession of legal qualifications, the possibility of the House being over-run by passionate, marginalised, justice-seeking populists from the wrong side of the tracks has ceased to be the progressive prospect it used to be. What might such a mob, unconstrained by a written constitution, an upper-house, an interventionist Judiciary, or even a progressive ideology, not descend to?
Members of Parliament who looked down with horror upon the fiery violence unleashed in Parliament Grounds by the great unwashed on 2 March 2022, and contemplating the possibility that people only marginally less extreme could one day constitute a majority in the House of Representatives, might surely be forgiven for shifting their gaze across Molesworth Street to the Supreme Court building, and whispering: “Why not?”
*Chris Trotter has been writing and commenting professionally about New Zealand politics for more than 30 years. He writes a weekly column for interest.co.nz. His work may also be found at http://bowalleyroad.blogspot.com.
5 Comments
With so few MPs coming from working-class backgrounds, and so many of them in possession of legal qualifications, the possibility of the House being over-run by passionate, marginalised, justice-seeking populists from the wrong side of the tracks has ceased to be the progressive prospect it used to be.
This has been trending for a decade or so, where MP's with qualifications far from the portfolios they manage, making over arching decisions effecting so many, without having the appropriate background experience and understanding to know the full implications of their actions. Also rendering them unable to read the room, so to speak, and act accordingly.
We need pragmatism to win out this election, as we are heavily in debt as a country with a government hell bent on ideologies that the public don't agree with en masse, and who have no viable plan to give the public confidence that they have any chance off repairing the economical and social damage done. Evidence of two terms has already proven they are incapable of this.
Wow. Great synopsis CT. I was not aware of this. And I am now conflicted as i can see advantages and disadvantages of both perspectives, and wonder if there is some form of middle ground?
While I do firmly believe that in a democracy the voice of the people's representatives must hold the balance of power, I also feel that there is a case where some independent judicial oversight would be beneficial too.
But today it could easily be asked if our politicians truly represent their constituents as they should in a democracy? And whether an independent judiciary would constrain them to do so?
The real truth is the growing orthodox population in Israel and the growing, young radical right wing contingent in Israel is aligned with the Netanyahu faction, who is desperate to stay in power.
The older secular and liberal Zionists are simply not having children in the same numbers as dedicated ultra orthodox or orthodox jews. The fact that the ultra orthodox have a large proportion that don't serve in the IDF and yet they elect Itamar Ben-Gvir, who believes Baruch Goldstein is a hero. All the while agitating extensively in East Jerusalem.
The social cohesion which made democracy work in previous decades has evaporated because the context of what we implicitly agreed on, who the nation consisted of, how we handled political change, how political power was respected and exchanged, has been evaporated.
Does Democracy still even exist in places like California or Illnois, which are effectively Party-States controlled by the Democrats for activist constituencies. What does it really matter who votes for what if one party always wins and all the battles for power are within the party structure by its constituent activist groups. The mayor of Chicago, Lori Lightfoot, was just defeated in the democratic primary and the media takes that as if the election for mayor has already been held.
The crying about populists capturing institutions is the inevitable result of the backlash to Leftists systematically capturing institutions and politicising them. Could a far right individual or even an ACT/Traditional Conservative find justice with the Human Rights Commission or half the legal institutions controlled by labour activists today?
The backlash to the cultural revolution which has been imposed by the Labour government since 2017 is simply banned from establishment media and flourishing beneath the surface. Simply because you will lose your job for speaking out, simply because you will be censored. We are even denied the dignity of our political grievances being legitimate or being allowed to disagree with many of the policies imposed, often to our own detriment.
Populists should take over these institutions and systematically disempower these people.
What you've missed Chris, is that Israel relies on so many small parties to make up its governments that a hardline minority could never press their radical agenda onto the rest of the country. I find it hard to believe that the 6 parties currently forming Israel's government could be so allied that they could force something on a bewildered populace.
Another interesting article by CT. He is getting there... slowly.
I've been following Israel & particularly BN for over a decade now & he is one remarkable person running one remarkable nation. The fact that the protests have been going on for so long is testament of the freedom the Jewish people enjoy every day, in stark contrast to their neighbouring nations.
Israel has had multiple elections of recent times & the protests are the liberals way of saying we don't want you Mr Netanyahu. But the fact remains, he is a third time elected Prime Minister of Israel. No the protests don't look good on the news. But the truth is the news never looks any good, regardless of who's telling it. That's just the way the news is. One age is finishing & another is beckoning & there's a right old scrap about how that will play out down here at ground zero. In many nations, not just Israel.
After watching the liberalisation of judiciaries across the western world for more than 4 decades now, & being a part of the worst crime wave we have had as a country for over a 100 years, it's probably the only thing Helen Clark & I will ever agree on.
As much as I admire Israel [the only country on Earth to spend more than 50% of their annual budget on security to survive] I'm sorry CT, but this is the one point of difference we have got right.
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