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 over 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 only 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 percent, compared to New Zealand’s 5 percent.
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, planted 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, 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 understood that the Israeli Supreme Court’s gavel was 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 now drawn 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 be forgiven for shifting their gaze across Molesworth Street to the Supreme Court building, and whispering: “Why not?”
This essay was originally posted on the Interest.co.nz website on Monday, 13 March 2023.