Betraying Justice Minister Yariv Levin’s pledge that his proposals to shackle Israel’s judiciary would be discussed carefully and patiently, Benjamin Netanyahu’s coalition, six weeks after taking office, is about to hold the first stages of voting on core sections of Netanyahu’s absolute power grab.
Shutting down opposition speakers and without completing any remotely genuine debate on the proposals, the chairman of the Knesset’s Constitution, Law and Justice Committee aims to hold a vote on Monday on the first sections of the shakeup. The goal is to bring these initial revolutionary legislative changes to a first reading in the Knesset plenum immediately afterward, possibly even later the same day.
These initial pieces of legislation focus on two areas: The first recasts the structure of the committee that selects High Court justices so that the coalition enjoys an automatic majority, shattering the current elegant, delicately balanced situation in which justices can only be chosen if both the coalition representatives and the members of the judiciary on the panel believe they are worthy. Hitherto, in other words, the composition of the High Court was a function of consensus. Henceforth, if the legislation goes through, the court will simply become another instrument of the governing coalition.
The second specifies that the High Court has no right to strike down quasi-constitutional Basic Laws or amendments to them. In the short term, this gambit is designed to enable the restoration to ministerial office of Aryeh Deri, the Shas leader and recidivist financial criminal. Deri’s appointment was deemed “unreasonable in the extreme” last month by the justices, even though a Basic Law amendment had been blitzed through the Knesset on Deri’s behalf to enable a minister to serve when under a suspended sentence, as Deri is for tax offenses.
These two drastic legislative changes, however, are but the opening salvo in the coalition’s package of “reforms,” which are designed not to strengthen Israeli democracy, as Netanyahu repeatedly claims, but to subvert it.
In the coming very few weeks, our new hardline government also intends to push through legislation that almost completely denies the High Court the capacity to block any legislation or government decision, no matter how undemocratic — both by requiring near unanimity across an expanded bench for any such ruling and by denying the justices the tool of “reasonableness” by which to weigh the legality of laws and decisions. Under an “override” provision, moreover, a majority coalition will be able to easily re-legislate almost any such legislation that the justices are able to strike down.
With no constitution and no possibility of the Knesset resisting laws advanced by a like-minded coalition such as today’s, the High Court, in the Israeli system, is the only effective constraint on government abuse, the only effective protection of individual rights against coalition excess. The package of “reforms” would remove those constraints and that protection.
It would also, not incidentally, clear a path for a variety of processes that could enable Netanyahu to wriggle free of his criminal trial.
In the words of Irwin Cotler, the former Canadian justice minister and attorney general, “in Israel, nothing would be protected” under the planned package of legislation. In an interview with The Times of Israel this week, Cotler, a world-renowned jurist and human rights activist, steadfast pro-Israel advocate, and member of the Israel Council on Foreign Relations, said no Western democratic government wields such control over the judiciary and over legislative and executive power as will be the case in Israel if the proposals are adopted in full.
When he set out this “first stage” of the coalition’s overhaul on January 4, Levin promised an “in-depth, serious debate.” On Sunday, a month later, by contrast, he vowed that it would not be delayed “even for a minute.” This was in response to President Isaac Herzog’s call for a pause in the dizzying rush for radical legislation in order to enable a genuine, considered process of discussion on judicial reform.
With Israelis in their masses demonstrating against the assault on our democracy; with jurists, bankers, economists and academics, including many from the coalition’s side of the political spectrum, penning warning letters; with tech workers and students and reservists marching in protest; with several Israel-based tech powerhouses pulling their money out of the country; with the Bank of Israel chief returning from the Davos World Economic Forum to convey global disquiet, and with a call for a nationwide strike this coming Monday, there can be no doubting the accuracy of Herzog’s warning last week that this “dramatic reform, when done quickly without negotiation,” is bringing Israel to “the brink of an internal struggle that could consume us all.”
Not ‘reform,’ but ruination
The coalition is going about its democratic demolition not only expeditiously but dishonestly. For a start, where Levin promised patience, we are seeing bullying haste.
False assertions are made about the High Court’s ostensible exaggerated power and interventionism as compared to the courts in other countries; Netanyahu last week, for instance, invoked inaccurate comparisons between the limitations he is working to impose here and those that apply in Canada, and incorrectly asserted that Canada’s courts cannot strike down laws.
The very word “reform” is a deliberate misnomer. This is not reform; it is ruination. The changes to the judicial selection panel, for example, are presented as addressing a current situation where, according to the prime minister and his colleagues, justices choose their own colleagues, when in fact they do no such thing. The tampering was initially depicted as enabling a more diverse and representative selection panel including two members of the public, but in fact, in Levin’s presentation, it was the justice minister who was to choose those two public representatives, thus surreptitiously skewing the selection panel while professing to improve it. In the latest draft of the legislation, the coalition majority is undisguised, with three ministers and two coalition MKs on the nine-member committee, and five votes required to approve a candidate for the bench.
The new government’s various coalition agreements provide for a long list of agenda items that a robust High Court would certainly query and in some cases block — including the codifying of a blanket exemption from military service for the ultra-Orthodox community; boosted state funding for inadequately supervised ultra-Orthodox schools that do not teach a core curriculum; legalizing wildcat settlement outposts built on private Palestinian land; legislation to allow discrimination on the basis of religious beliefs in the provision of services; and the bombshell, coalition-backed, Shas legislation unveiled and then shelved amid an outcry Thursday that would criminalize mixed-gender prayer at the Western Wall, including at the egalitarian area.
A neutered High Court would also expose Israel to far greater vulnerability before such international forums as the International Criminal Court, hitherto deterred because of the credibility of Israel’s own judiciary. It would also deeply strain Israel’s relations with its allies and defenders; US secretary of state Antony Blinken repeatedly reminded Israel on a visit last week that our ties with our existential ally are founded not only on shared interests but also on shared democratic values.
Silent acquiescence is unforgivable
There are those who argue that the opposition to the Netanyahu coalition’s moves is hysterical. They assert either that the impact of the changes would be far less catastrophic than critics claim, or that the final legislation will be significantly watered down.
An honest, clear-eyed reading of Levin’s proposals and the legislation taking shape in Knesset committee shows that they are wrong on the first. And thus far, despite the roars of concern from the president on down, and the mustering of widespread public pressure, the evidence is that they are wrong on the second as well.
Complacency and worse from those who care for Israel is unforgivable. As Herzog has warned, this country is profoundly divided and is currently in the process of tearing itself apart. Israel’s taxpayers will not quietly shoulder a greater financial burden to support a growing ultra-Orthodox community exempt from national service and being incentivized not to join the workforce. Many in the mainstream will be deeply wary about sending their children to the front lines to defend a government with extremists in key ministerial positions stirring up friction and avoidable conflict.
A faltering economy — viewed with increasing mistrust by international investors concerned about a shift away from the judicially protected rule of law — will undermine Israel’s practical capacity to defend itself against its enemies.
Herzog’s plea for what amounts to a time-out on the overhaul is the most urgent necessity. He is manifestly right to urge a pause — to debate, to build consensus, to step back from the autocratic brink and instead to formulate the nuanced, wise, constructive framework that all sides claim to seek, one that protects and enhances Israeli democracy.
It takes just one man to accept this entreaty: Benjamin Netanyahu. But instead, Netanyahu allows his justice minister to brush off the president and permits the like-minded chair of the relevant Knesset committee to steamroll ahead.
Israel’s democracy is not merely under threat. In parliament next week, the first votes are to be held in the process of its demolition.
See Marc Schulman's graphic below
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