(January 26, 2023 / JNS) So, how’s Israeli Prime Minister Benjamin Netanyahu faring in his supposed program to smash democracy at the behest of the religious extremists in his government?
Well, as Israel’s newly-minted dictator, he’s not doing too well in that regard.
Consider: Netanyahu has demonstrated his supposed craven subjection to the ultra-nationalist Bezalel Smotrich, to whom he gave authority over civilian administration in the disputed territories, by brutally slapping Smotrich down when he attempted to overrule an IDF and Defense Ministry decision to tear down an illegal Israeli outpost.
Netanyahu has shown his allegedly despotic determination to ditch the rule of law by bowing to the Supreme Court’s ruling against his minister and long-time ally Aryeh Deri and firing him.
And Netanyahu showed himself captured, bound and gagged by the zealots in his government who want to turn Israel into a theocracy when he effectively overruled the Culture and Sports Minister Miki Zohar, who said he would stop funding cultural activities on Shabbat.
In other words, in every case, Netanyahu has chosen to uphold the existing order rather than overthrow it.
Undoubtedly, the fight between Smotrich and the defense establishment has further to go. Netanyahu has said he will somehow bring Deri back into his government. We have yet to see how these and other issues will turn out.
Maybe Netanyahu will yet morph into a cross between Viktor Orban, Herod and Mussolini. But so far, he has been behaving as a cautious, risk-averse prime minister determined to keep the liberal, constitutional show on the road.
Of course, this has received no acknowledgment from the “progressive” Jewish world, both in Israel and the Diaspora. To such people, Netanyahu is personally irredeemable, and because the government he has formed is committed to defending Jewish interests rather than left-wing principles, it is deemed incapable of doing anything sensible or good.
This reflects the frightening polarization of our times, in which issues aren’t assessed on their merits and in accordance with evidence and logic, but are denounced or embraced depending solely on which side of the ideological line they fall.
This is not just confined to the left. Netanyahu’s supporters have demonstrated similar tunnel vision over the Deri issue.
The Supreme Court ruled 10-1 that Deri’s appointment as interior and health minister was “unreasonable in the extreme” due to the crimes he has committed, including two convictions for tax fraud in 2022 and previous convictions for bribery and fraud in 1999.
In a plea bargain with the attorney general over the tax offenses, Deri admitted wrongdoing and pledged to resign from the Knesset.
In a sentencing hearing in Jan. 2022, Deri appeared to go further. He told the court that he now wanted to “represent the segments [of society] and the public that I represent in a different manner, even if not from the Knesset.”
In the same hearing, the state prosecutor urged leniency because Deri’s “public statement and his retirement from his political life reflect his sincerity.”
As a result, the court gave him a suspended jail sentence. The court’s president said the public could rest assured that Deri “will no longer be involved in the needs of the public that involve financial dealings, due to his distancing himself from the public arena.”
But before the Supreme Court, Deri claimed he had only declared an intention to step down temporarily, not retire permanently from political life.
Five of the Supreme Court justices dismissed this claim under the principle of “estoppel,” which governs the enforcement of a promise in legal proceedings.
The Oxford Dictionary of Law defines estoppel as a rule of law “that prevents a person from denying the truth of a statement he has made.” Garner’s Dictionary of Legal Usage defines it as “a bar that precludes a person from denying or contradicting something that he or she has said before.”
Other legal experts, however, say that Deri’s pledge doesn’t qualify under estoppel because he made no legally binding commitment to step down permanently from political life.
Supporters of the government’s proposed legal reforms who have commented on the Deri case have mostly ignored the estoppel point altogether, on the grounds that the judges making it were simply playing politics.
That’s because the majority on the Supreme Court ruled that Deri should be removed from office because his appointment was “severely unreasonable”; and the Israeli judiciary’s elastic definition of “unreasonable” is a core reason the judges are accused of judicial overreach, including striking down laws of which they disapprove. The government’s proposed judicial reforms are designed to correct this.
But the core of the Deri uproar is not the court ruling. It was Netanyahu’s decision to bring Deri back into government.
Whether Deri did or did not breach a legal principle, bringing back a man who was twice found guilty of corruption—and who made disingenuous statements to avoid being barred from the political arena, to which he then promptly returned—was a distasteful political decision.
Opinion polling suggests that most Israelis agree. Deri’s return offended their sense of justice and propriety. On this, however, supporters of the judicial reform proposals are silent.
But it should be possible to say both that Netanyahu was wrong to bring Deri back and that it cannot be right in a democracy for unelected judges to overturn laws passed by the Knesset.
It should be possible to say both that the judges need to be restrained from ideologically-driven overreach and that there is a problem with checks and balances on the executive.
The judges claim they are the only brake on the government. But unelected judges should not be able to countermand laws passed by those the public elect to govern them.
The proposed reforms would give Israel the same relationship between the courts and the legislature as in the U.K., where the judges cannot overturn laws passed by Parliament.
But the Israeli judges aren’t wrong to say government checks and balances are inadequate. That problem derives from the deeply dysfunctional Israeli political system itself.
In the U.K., members of Parliament elected by the public serve individual constituencies that can vote them out of office. This encourages MPs to put pressure on the government to keep its election promises and not depart radically from public opinion. Members of Knesset have no such relationship with the public and exercise no such brake on the government.
A further corrective is provided in the U.K. by its second chamber of Parliament, the House of Lords, which can delay legislation and make amendments. Israel has no such second chamber.
No Israeli politician is brave enough to identify this problem and propose fundamental political reform. But this democratic deficit must not be made worse by unelected judges imposing their ideological agenda.
At the same time, turning the judges into political appointees would unbalance the system in the opposite direction. A key principle of democracy is that the judiciary and prosecuting authorities must be independent of the government.
In Britain, this is the case. As a result, it looks askance at America, where, from the Supreme Court on down, judges and prosecuting attorneys are political appointees.
In British eyes, it would be wrong if Israel went down that road. But if Israel did so, it would merely make Israel more like America. Do American Jews screaming about the end of civilization in Israel think democracy doesn’t exist in America?
Almost certainly, these judicial reforms will involve compromises along the way. Crucially, every system depends on everyone playing by the unspoken rules of the democratic game and not taking partisan positions.
Unfortunately, at present that does seem like too much to ask.
Melanie Phillips, a British journalist, broadcaster and author, writes a weekly column for JNS. Currently a columnist for The Times of London, her personal and political memoir Guardian Angel has been published by Bombardier, which also published her first novel, The Legacy. Go to melaniephillips.substack.com to access her work.
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