(April 22, 2019 / Israel Hayom) At the Likud post-election victory party I saw many people rejoicing—women and men, religious and secular, young and old. The cheers were mainly an expression of the right’s victory over the leftist media. The attendees had internalized that the Blue and White Party was invented by the media, for the sole purpose of ousting Prime Minister Benjamin Netanyahu.
Indeed, Channel 12 reporters Guy Peleg and Amnon Abramovitch have continued the election campaign as if the issue had not already been decided by Israel’s citizens. The failure of the left seems to have lent them new energy, producing headlines familiar from days past.
Former Supreme Court head Aharon Barak has written more than once that the court has no sword or purse, but it does have the public’s trust. There sometimes seems to be some dispute over the definition of the word “public,” however. The Israeli left has already proved numerous times that in its opinion, the public, which it sees as a herd of ignorant, trouble-making, reckless fools, is of no importance to modern liberalism. It is only the progressive and enlightened public that is deserving of attention and appreciation. In the eyes of the judicial elite, the public is the “legal community,” which includes judges, lawyers, academics and the commentators that serve as the link between the court and the masses.
We recently received an instructive lesson on how the collaboration between the judicial elites and those under their command in the media operates. As soon as the possibility of Likud Party member Yariv Levin being appointed justice minister was raised, Peleg railed against the move, claiming he could not fathom Netanyahu giving him the portfolio with the knowledge “his affairs are expected to be heard in court.” A sharp message that it would not be wise to appoint a contrarian minister unwilling to align with the judicial system’s takeover. Levin’s possible appointment was immediately and crudely compared to former Prime Minister Ehud Olmert’s appointment of Prof. Daniel Friedman to the role of justice minister.
I did not laugh when Abramovitch joked that the significance of Levin’s appointment would be another year in prison for Netanyahu. This was the darling of the judicial elite issuing an explicit threat to Netanyahu. Now the only thing missing from this story is for them to try to frame Levin. We’ve seen this before. The judicial elite knows how to frame appointees and thwart appointments of those they do not cherish. Former Supreme Court vice president Elyakim Rubinstein joined the “gevalt” campaign against the appropriate and important trend of decentralizing government power among the authorities, as is accepted in enlightened states.
The power accumulated by the Supreme Court and its representatives in government fractures the foundations of democracy. Justices are supposed to resolve conflicts and protect the minority from the oppression of the majority. Israel is one of the only democratic countries in the world in which a majority needs protecting from the usurpation of the minority, which under the auspices of the court tries to lead society without having been elected to do so.
The issue of the judicial system’s growing power is also given intense expression in the fundamental constitutional issue of the immunity of public officials. In 2005, following the double votes in the Knesset, the law that grants Knesset members immunity was amended with remarkable speed. The amendment allows the attorney general to file an indictment against an MK directly with the court, without the need to first remove the MK’s immunity, at the attorney general’s own discretion. This genuinely harms and significantly distorts the immunity of lawmakers, immunity that is essential to their ability to carry out their mission.
The significance of the amendment is that in practice lawmakers do not have immunity unless they ask for it to be activated—while also detailing the reasons they require immunity. In a majority of enlightened democracies, including France, England, Canada, the Scandinavian states and many others, it is law enforcement that must convince parliament to remove immunity, and not the other way around. The issue of lawmaker immunity should be re-examined, in particular at a time when the balance between the country’s branches of government must be restored. Leaders were elected to lead, attorney generals to serve as legal advisers and judges to judge.
The Passover holiday is an expression of freedom and unity. May we be able to eliminate the bitterness and together, out of fraternity and friendship, celebrate all of the good and beauty that exists in our lives in the Land of Israel. A very happy holiday indeed.
Dr. Haim Shine is a faculty member of Israel’s Academic Center of Law and Science, and a member of the Jewish Agency’s Board of Governors.
This column originally appeared on Israel Hayom.