Believe in Israeli democracy? Then stop trying to override it

Asking Israel’s High Court to spike a coalition agreement is, like efforts to encourage Washington to muscle its elected government, an effort to thwart democratic rule.

Israeli Supreme Court president Esther Hayut and Supreme Court Justices arrive to a second-day court session on petitions against the coalition agreement between Gantz's Blue and White Party and Netanyahu's Likud Party at the Supreme Court in Jerusalem on May 3, 2020. Photo by Oren Ben Hakoon/POOL.
Israeli Supreme Court president Esther Hayut and Supreme Court Justices arrive to a second-day court session on petitions against the coalition agreement between Gantz's Blue and White Party and Netanyahu's Likud Party at the Supreme Court in Jerusalem on May 3, 2020. Photo by Oren Ben Hakoon/POOL.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

Israel’s critics talk a lot about threats to its democracy. When they use this phrase, they are generally referring to Prime Minister Benjamin Netanyahu and his supporters, who are widely damned in the international media as would-be authoritarians with no respect for the rule of law.

Netanyahu bears his fair share of the blame for his country’s problems. But if there’s a real foe of democracy in the Jewish state, it isn’t him. It’s his opponents who want an out-of-control judiciary and foreign powers to override the verdict of Israel’s voters.

That became plain again this week when left-wing opponents of Netanyahu asked Israel’s High Court of Justice to invalidate the coalition government he forged with erstwhile rival Blue and White Party leader Benny Gantz. The petitioners say the court should intervene in the process and declare that a person who is currently under indictment on criminal charges—as is the case with Netanyahu—should be ruled ineligible to be prime minister.

Irrespective of whether or not it would have been wise for Netanyahu to resign when he was indicted or his right to be considered innocent until proven guilty, there was no law in the books that compelled him to do so. Indeed, according to Israeli law, he can remain in office while being tried and even convicted until his last appeal has been denied.

Let’s hope it never comes to that. However, as the dialogue between the judges for the lawyers for both the plaintiffs and the opponents of the petition illustrated on the first day of arguments, there is no legal foundation for the court to declare that the will of a majority of the Knesset—the Netanyahu-Gantz coalition will command the support of more than 70 members of the 120-person parliament—is to be not only ignored, but suppressed in the name of an undefined notion of good government with no basis in law.

Chief Justice Esther Hayut made this clear when she demanded that the lawyers who were asking the court to declare that Netanyahu could not serve as prime minister to give her a good reason to do so:

“Show us something! A law? A verdict? From this country’s [history]? From [somewhere else] in the world? Something! After all, [you’re asking us to set] a global precedent? You want us to rule without a basis simply according to your personal opinion?”

That summed up the case nicely. But that the court would even consider such a flimsy case, rather than dismissing it out of hand, and that some Israelis think it should act in this matter is entirely the fault of the justices. Because that is exactly what it has done in a multitude of other cases in which it intervened solely because of the “personal opinion” of the justices.

That was the legacy of former Chief Justice Aharon Barak. During his time as head of the high court (1995-2006), he used his powerful perch to vastly expand the court’s power.

We often speak in the United States of the evils of judicial activism, in which both liberal and conservative judges have been accused of legislating from the bench. Yet even the worst American examples pale before Barak’s chutzpah in which he declared virtually any issue to be justiciable by his court, irrespective of the fact that there were no laws for them to enforce in many cases.

The revolt against Barak’s legacy is a key issue dividing Israelis with the Israeli right embracing the cause of reform of an essentially lawless judiciary. Netanyahu’s opponents on the left claim this effort is essentially anti-democratic and authoritarian in nature. But while the Likud Party leader and his loyalists have a grudge against the justice system because of their belief that the corruption charges lodged against him are unjustified, that doesn’t gainsay the fact that their criticisms of the court have substance. That the court appears to finally understand there have to be some limits to its power—as evidenced by their reluctance to intervene against Netanyahu after their recent unjustified ruling determining how the Knesset should choose its speaker—is proof that the criticisms have hit home.

Many of the same people who have been cheering on the court’s willingness to usurp the power of the Knesset have also been urging foreign governments to also override the will of the Israeli people as expressed at the voting booth.

For decades, those who felt Israel was insufficiently accommodating of Palestinian territorial ambitions have demanded that the United States force the Jewish state to accede to their demands. Many liberal Jews believe that it is not only their right, but their duty, to lobby Washington to “save Israel from itself” by using every lever of power, including withholding U.S. aid, to force Jerusalem to knuckle under to their demands.

Indeed, many are hoping that former Vice President Joe Biden will—like his former boss, President Barack Obama—not only put more “daylight” between the two countries positions, but reverse the Trump administration’s endorsement of Israeli positions on Jerusalem, the Golan Heights and West Bank settlements. But regardless of whether those stands are correct, the principle here is that Trump treated the will of the Israeli voters with more respect than any other American president.

Netanyahu’s critics aren’t trying to bolster Israeli democracy, but to disregard it. Though the Israeli left has been reduced to a fraction of its once dominant support in the Knesset, it still hopes that Biden will give them a victory they have been denied by Israel’s people.

Those Americans who claim to care about Israel are entitled to their opinions about its policies, but they have no business declaring that they are defending democracy by essentially seeking to invalidate it. Israel has many problems, and there are valid criticisms to be made of its new government. However, the only real threat to Israeli democracy comes from those who are falsely claiming to be its defenders.

Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.

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