(February 22, 2023 / JNS) Much-needed reform that will correct an overreaching Supreme Court, and thereby make Israel more democratic, or a threat to the democratic values of the state that will destroy the political system’s checks and balances?
That question is at the heart of the debate between the government and the opposition over the judicial overhaul, parts of which passed the first of three requisite votes in the Knesset this week.
Non-governmental organizations are directly influencing the battle over the planned reforms.
Proponents of the reform program say opposition to it has more to do with preserving the authority of a far-left and all-powerful Supreme Court.
A relatively new and increasingly-influential Jerusalem think tank, the Kohelet Policy Forum, has been pushing for such reform for years, as part of an effort to strengthen representative democracy. Kohelet was consulted by the government as it prepared the legislation.
“As is, the reform is actually making Israel more democratic not less,” Ran Bar-Yoshafat, deputy director of Kohelet, said in an interview. “The main question is does liberal democracy only protect minorities and not protect the majority that elects the government? The argument is over who has the last word, the Knesset as the elected representatives of the people, or the unelected justices of the Supreme Court.”
On the other side of the aisle, the Movement for Quality Government in Israel (MQG)—a small yet effective civil-society nonprofit organization that is the leading petitioner to the Supreme Court when it sits as the High Court of Justice—is leading the public fight against the overhaul.
MQG was the organizer behind last week’s mass protest against the government’s judicial legislation where an estimated 60,000 to 100,000 demonstrators converged outside the Knesset. This week, an estimated 40,000 protesters attended Monday’s protest near the legislature.
The founder and chairman of the Movement for Quality Government in Israel said that Israel has been run by “a bunch of crooks” from both the left and the right over the last three decades, and that if the planned judicial overhaul becomes law it will destroy the democratic values of the state.
“This is the most important moment in Israel’s history,” Eliad Shraga said in an interview with JNS from his Tel Aviv office. “If this legislation passes, Israel won’t be a liberal democracy.”
Both non-governmental organizations wield tremendous influence.
Kohelet, which operates on a 30 million shekel budget (around $8.3 million), employs about 120 people, Bar-Yoshafat said. It does not accept any government funding—domestic or foreign—and relies on private donors, primarily in the U.S.
The Movement for Quality Government operates on an 11 million shekel (about $3 million) annual budget, 72% of which comes from its 70,000 members, Shraga said. The remainder is from private donations, Jewish philanthropists and startup companies, he added.
The organization, which has 35 full-time and 60 part-time employees, does not accept Israeli government funding, though it has been granted about $15,000 a year from the American Cultural Center in Jerusalem for educational programming, he said.
Netanyahu’s legal woes
Sharga said that the current legislation is not about reforming the judiciary, as its supporters say, but intended to destroy it due to the prime minister’s legal predicament.
“These people are not coming bona fide to fix the system but are using a legitimate argument between liberals and conservatives over the court system to ruin it,” he said. “All the cards fell in place.”
The 63-year-old lawyer has in recent years become an increasingly outspoken critic of Prime Minister Benjamin Netanyahu following his indictment on corruption charges. In the last month, Shraga has gone so far as to lobby President Isaac Herzog and petition the Supreme Court to declare Netanyahu unfit for office, arguing that the premier is in violation of a court ruling that he must avoid conflicts of interest to his ongoing trial.
Netanyahu and his supporters call the move an attempted coup coming on the heels of his November election victory.
Bar-Yoshafat said that while the timing has a “bad smell,” people who say that the judicial reforms are being carried out only because of Netanyahu’s legal woes are not being serious.
“I have been working on this issue of judicial reform for a decade and a half,” he said. “[Justice Minister] Yariv Levin has been working on it for 13 years.”
Bar-Yoshafat noted that from the opposition’s perspective that there would never be a “good time” for such reforms, and they want to leave a real problem—which had previously been dubbed by legislators across the political spectrum as “the Supreme Court on steroids”—unfixed.
The issue, he said, boils down to mistrust. “Everyone thinks that the other side is evil,” Bar-Yoshafat said.
Shraga’s latest efforts come after his organization successfully petitioned the Supreme Court to prevent Shas leader Aryeh Deri from serving as cabinet minister due to his recent conviction for tax offenses.
“You don’t need to be a genius to know that someone who was convicted three times shouldn’t be a guard at the entrance to any building, let alone a minister in the government,” Shraga argues. “It’s lunacy.”
Asked if he was seeking to overturn the will of the voters by his legal moves against the prime minister, Shraga said that “Netanyahu got a mandate to run the country, not to change the very DNA of Israel’s democracy into a fascist dictatorship.”
Who wields the power?
Proponents of the judicial overhaul counter that it is the Supreme Court that wants to maintain its grasp on power and continue to function as a “super-legislature.”
In contrast to the United States and other countries, any person or organization in Israel can petition the Supreme Court to rule on any issue, without needing to allege any injury to themselves (that is, have legal standing on the matter in question), said Eugene Kontorovich, a professor of constitutional law at George Mason University and a scholar at Kohelet.
“They have appointed themselves as the self-proclaimed representatives of the people,” he said. “This legislation would reduce their power and limit their ability to make policy.”
The petitions allow the court to weigh in on major issues of the day, some of which should not be in their prerogative, Bar-Yoshafat said.
The court ruled on a Kohelet petition that then-Prime Minister Yair Lapid’s natural gas deal with Lebanon last year the week before the election was reasonable, whereas the court in an earlier election cycle said that Netanyahu could not close three PLO offices in east Jerusalem too close to the 1999 vote, he said.
“I did not vote for you,” Bar-Yoshafat said of the justices, citing an array of other court decisions on petitions from exporting monkeys to a U.S. laboratory to deporting foreign workers who were in Israeli unlawfully. “These are not questions for the Supreme Court to decide but for the people through their elected representatives.”
The “Stinking Maneuver”
Shraga founded the Movement in March 1990 straight out of law school following a notorious, failed political maneuver by then-Labor Party leader Shimon Peres to get Deri and Shas to join Labor in forming a government in what became known as the “Stinking Maneuver.”
“It was so corrupt. You are selling your party, your friends, your ideology for a fistful of dollars,” Shraga said. “It’s exactly what they are doing now.”
“I decided to fight corruption because I understood this is an existential threat,” he said. “Corruption doesn’t just hurt national security or the economy but it ruins the foundations of the state.”
“It doesn’t matter if it is from left-wing or right-wing parties. At the end of the day, corruption is corruption is corruption.”
The preliminary approval of the legislation is now expected to be followed by backroom negotiations in an effort to reach a compromise. Final approval of the program is expected to come towards the end of March.
One bill advanced on Tuesday would give the government significant control over appointing new judges. Another would bar the Supreme Court from overturning Basic Laws, which the court decided in the 1990s collectively stand in for the constitution that Israel does not have.
A bill that passed in its first reading on Wednesday would give an absolute majority of 61 lawmakers the power to override Supreme Court rulings that strike down laws. Another piece of legislation in the works would give the governed control over the appointment of government legal advisers. (The Supreme Court ruled years ago that government representatives must act according to the rulings of their legal “advisers.”)
“You have a proposal [in its first reading] and then the final outcome,” Bar-Yoshafat, who previously worked in the Knesset legal department, said. “In my experience, the two are never the same.”
Shraga took a hard line, rejecting a compromise proposal put forward by President Herzog that most Israelis favor as a “surrender.” “You don’t deal with crooks,” he said.
In contrast, Bar-Yoshafat favors compromise to reach as broad a consensus as possible.
“I feel sympathy for people who are protesting and feel that something is being taken away from them even if I feel they are wrong,” he said.
“Many people felt that way for the last 30 years,” Bar-Yoshafat said. “In democracy sometimes you lose. You don’t always get the policy that you want.”
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