“Break free of [Prime Minister] Benjamin Netanyahu’s dictatorship,” a 2014 Walla! headline boldly announced. “Israel is beginning to look like North Korea, yet people aren’t taking to the streets,” a Ha’aretz podcast 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; back in the 1980s professor Yeshayahu Leibowitz warned us of the “Judeo-Nazis.”
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 have made the same claim. In short, for years now, the internet 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 public. The people have been smart enough to see this for what it is—propaganda. Until this time. In the current round, when the government presented a series of bills intended to regulate its relations with the courts, many people began to genuinely believe that there was now a clear and present danger to Israeli democracy.
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 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, wrote the book “The Case for Democracy” and was awarded the Presidential Medal of Freedom by U.S. President George W. Bush. He made this statement last week in an interview with the Israel Hayom podcast “Roim Rachok” (Seeing into the Distance), and by the way, he no longer enjoys the warm relationship he had with Israeli Prime Minister Benjamin Netanyahu in the past.
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 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 Knesset amendments 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, or in other words, a significant postponement of implementation.
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—to disqualify 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, now everything will be arranged in an orderly fashion—and the judges will be given this power by none other than Rothman and Levin.
Just ask Mandelblit
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 criminal cases reach the Supreme Court? Does this entail politicization of the court?
It’s extremely easy to scare people and generate panic, but when it comes down to it this theory is completely detached from reality, as much so as the claim that the Israel Security Agency was behind the assassination of former Prime Minister Yitzhak Rabin.
Why? Because even after the reform and even if the government has absolute control of the committee—which isn’t 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 U.S. 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 an example from the past 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 as president, but certainly showed no special consideration to the government.
Exactly the same scenario occurred with former Attorney General Avichai Mandelblit, 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. We don’t have to look far afield for clear evidence of this. In fact, at this very moment, conservative Supreme Court judges, 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 Supreme Court judges is painfully slow. Even if Netanyahu’s court cases reach the Supreme Court in five years’ time, at least 10 of the current serving judges will remain. 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 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 passed 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 now setting the streets ablaze firmly back in its bottle.
Originally published by Israel Hayom.