"Break free from (Prime Minister) Benjamin Netanyahu's dictatorship", the headline boldly announced in the Walla! the online portal in 2014. "Israel is beginning to look like North Korea, yet people aren't taking to the streets," the podcast in Ha'aretz claimed in 2019. Back in 2016, then-IDF Deputy Chief of the Staff Yair Golan identified in Israel "processes that occurred in 1930s Germany." He was not the first to make this claim as back in the 1980s Prof. Yeshayahu Leibowitz warned us of the "Judeo-Nazis".
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In 2020, popular historian, Yuval Noah Harari, claimed that "Israeli democracy is dead." Ben Caspit, another well-known journalist, raised the same claim that same year, the year beforehand, and the year before the year beforehand. And others too have made the same claim. In short, for years now, Google has been full to the brim with warnings from the radical Left that Israel is about to become a Nazi, North Korean, Chinese, fascist state or dictatorship.
This nonsense has never taken root among the wider general public. The people have been smart enough to see this for what it is – fake propaganda. Until this time. In the current round, when the government presented the series of laws intended to regulate its relations with the courts, many people began to genuinely believe that there is a clear and present danger to Israeli democracy.
Just recently, I saw with my own eyes elderly Jerusalemites sitting on a bench and holding a sign with the following handwritten message: "Saving Democracy". They sat down to take part in an improvised protest as they too had been persuaded by someone that the judicial reform poses a real threat to democracy. Is their concern just? Is there a genuine danger to our freedoms? To our democracy? To the independence of our courts? The answer to this could not be clearer, no, no and once again no. Although Minister of Justice Yariv Levin, the chair of the Constitution, Law, and Justice Committee MK Simcha Rothman, and the entire government have not had good messaging on this, the reality of the situation is that there is no danger to Israeli democracy. Period.
Its method of operating might change, just as it did during the first judicial revolution initiated by former Judge Aharon Barak in the 1990s. But even before that revolution, "Even if the reform is passed as is, Israel will remain a democracy."
This quote can be attributed to Natan Sharansky, considered to be one of the most important freedom fighters of all, who took on the mighty Communist regime of the Soviet Union, the man who wrote the book The Case for Democracy, and who was awarded the Presidential Medal of Freedom by US President George W. Bush. By the way, he no longer enjoys the warm relationship he had with Netanyahu in the past. He made this statement last week in an interview with the Israel Hayom podcast "Roim Rachok" (Seeing into the Distance).
Get ready for the diet
Why is there no real risk to democracy? Because the courts will remain extremely strong even after the reform; because since the establishment of the state to this very day, and even if all the proposals of Levin and Rothman are approved word for word, the courts will retain the same powerful instruments to enable them to prevent wrongs being committed by the authorities or any violation of rights. Nothing in the new proposals comes close to affecting those instruments.
What are these instruments? First and foremost is the issue of judicial review. This has been the basis upon which the Supreme Court has made a series of historic decisions, since the 1950s, limiting the power of the government and the Knesset and preventing the infringement of rights. Nobody is going to change or limit the power of the courts to interpret the law.
Secondly, the court's administrative oversight of the government and its ministries will remain unchanged. In the event of a decision being made without sufficient factual basis, or from a conflict of interests, or due to ulterior motives, or based on prejudice, or inequality, or arbitrarily, without explicit agreement or deviating from the law – it will be struck down by the court. Just as is the case today and just as was the case until Barak's revolution in 1992.
It was with these tools that the Supreme Court anchored the principle of freedom of expression in the famous 1953 case brought by Kol Ha'Am (Voice of the People) newspaper against its suspension by the government. Using these instruments, conservative judges such as Menachem Elon and Moshe Landau, vociferous, outspoken critics of Barak, who way back in 1969 disqualified amendments of the Knesset to the Political Party Funding Law, and did so once again in 1989 – without the reasonableness standard and the famous judicial activism. Here too, nothing has changed, and the court will not be weakened.
An additional component in the diet that the reform is to undergo regards the override clause. As was published in Israel Hayom, it is highly likely that the override clause will not even make it to the bill's third reading. But even if it does, the required number of judges to disqualify a law will not be 15 out of 15. As regards the Knesset's power to "override" and revoke a court decision – it will probably be limited to a specific interval or will require approval of two separate Knesset terms, in other words, a significant postponement of implementing the override clause.
An even more important detail, which is strangely left out of most reports and commentaries, is the actual power that this reform will grant to the court for the first time for disqualifying laws. Clearly, not as an everyday occurrence, and not with ease, but still... In place of the judicial jungle that has existed for decades, in which the court may disqualify laws without having the jurisdiction to do so – this time, everything will be arranged in an orderly fashion, and the judges will be given this very power by none other than Rothman and Levin.
Just ask Mendelblit
And what about the Judicial Selection Committee? Will Netanyahu, via Levin, appoint the Supreme Court judges, who at some time in the future will then acquit him when his ongoing cases reach the Supreme Court? Does this entail politicization of the court?
It is extremely easy to scare people and generate panic, but when it comes to down to it this a conspiracy that is completely detached from reality, no more or less than the claim that Israel's Shin Bet security agency was behind the assassination of former Prime Minister Yitzhak Rabin.
Why? Because even after the reform and even if the government will have absolute control of the committee – which is not going to happen – the judges will be selected until their retirement at the age of 70. This is in contrast to the situation in Switzerland, for example, where the judges are actually party members and are selected for a six-year term only. In any event, once a judge has been selected nobody knows what judgments he will issue. Ask former US President Donald Trump, who passed on the lawsuits against him to judges he had personally appointed and received a stinging slap in the face.
There is sufficient evidence of the fact that Netanyahu's appointees, just like many other appointees in Israel in general, tend to operate in accordance with professional rather than political codes. Let's take a recent example from the last decade. In 2011, Netanyahu's right-wing coalition played with the seniority system, to engineer a situation whereby Judge Asher Grunis would be appointed as chief justice. Grunis was indeed selected to be president but certainly showed no special consideration to the government.
Exactly the same scenario occurred with former Attorney General Avichai Mendelblit, former State Attorney Shai Nitzan, and former Israel Police commissioner, Roni Alsheikh, all of whom were appointed by Netanyahu, and all of whom stood firmly against him when they deemed it fit to do so, and while they were still serving under him. This same professional approach is much more likely to apply to a judge sitting in his chambers and 'doling out justice'. We don't have to look far afield for clear evidence of this. In fact, at this very moment in time, conservative judges in the Supreme Court, such as David Mintz, Yosef Elron, Alex Stein, and Noam Sohlberg have repeatedly ruled against the coalition, including in the recent case of the appointment of Aryeh Deri as cabinet minister. Accordingly, the assumption that any judge would issue rulings based on political considerations is shameful, and more than anything else serves to besmirch the judges themselves. The president of the Supreme Court should have been the first to shout out against this insult. But, as we all know, she chose to take sides.
In any case, the pace of replacement of the Supreme Court judges is painfully slow. Even if Netanyahu's court cases reach the Supreme Court in five years' time, at least ten of the current serving judges will remain there. There is absolutely no way that Netanyahu will be acquitted if he is not worthy of acquittal.
All of these issues, and many more, should have been clearly explained to the people and the world at large by the government ministers during the last month. But the government kept quiet, and the opposition played in front of an open goal, and as such won the game. At least, for the time being. Perhaps now that the bills have completed their first reading, at least one of the 31 ministers and five deputy ministers might take the trouble to get up and calm everybody down, and to put the genie, who is now setting the streets ablaze, firmly back in its bottle.
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