AG: Netanyahu bloc’s legislative push could render Israel a ‘democracy in name only’

Gali Baharav-Miara warns bills expedited by the likely incoming government stress majority rule without protecting minority rights; Ben Gvir: She ‘thinks she’s the real PM’

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Attorney General Gali Baharav Miara speaks during a conference at the University of Haifa, December 15, 2022. (Shir Torem/Flash90)
Attorney General Gali Baharav Miara speaks during a conference at the University of Haifa, December 15, 2022. (Shir Torem/Flash90)

Attorney General Gali Baharav-Miara on Thursday condemned a flurry of legislation being pushed by the likely incoming government, cautioning that the bills could render Israel a “democracy in name only.”

In an address delivered at a legal conference at the University of Haifa, the attorney general decried the expected new right-wing religious government for what she said was an attempt to remove all restraints on the exercise of power, and asserted that majority rule without institutional balances guaranteeing minority rights could not be considered a true democracy.

The attorney general’s comments generated strong condemnation from senior leaders of the incoming coalition’s parties, including the leader of the far-right Otzma Yehudit party Itamar Ben Gvir, who sniped that she “thinks she is the real prime minister.”

Ben Gvir’s comments in turn were denounced by outgoing Prime Minister Yair Lapid, who described the expected incoming police minister as “a thug” and his comments as “an affront” to the values of the state.

Baharav-Miara began her speech by voicing concern for Israeli democracy, citing an aphorism that “the price of liberty is eternal vigilance.”

“Even in a country where the government is democratically elected, majority rule is not enough in order to guarantee freedom and equality for all. Majority rule without systems that balance the power of the majority are not in essence democracies,” said the attorney general.

Composite photo: Otzma Yehudit chairman Itamar Ben Gvir (L) during a faction meeting at the Knesset on November 21, 2022; Attorney General Gali Baharav-Miara speaks at Tel Aviv University on September 28, 2022 (Flash90)

She asserted that legislation being pursued by the incoming government amounted to a “substantive change in governance,” which required consideration and debate rather than the expedited manner with which some of the bills are being advanced. Presumptive incoming prime minister Benjamin Netanyahu’s bloc wants several of the bills passed into law before his government is formed.

Baharav-Miara expressed particular concern about demands for a High Court of Justice override law, which would effectively end the court’s ability to strike down legislation and reverse government decisions that violate fundamental rights laid out in Israel’s quasi-constitutional Basic Laws.

Another proposal involves making ministerial legal advisers into political, not professional, appointees. Such legislation has not yet been submitted to the Knesset and will likely not be pursued until after the formation of the government.

The legislation currently being advanced in the Knesset includes a bill to bolster the power of the minister responsible for the police — expected to be Ben Gvir — over the police commissioner; a draft law to allow the transfer of powers over governance in the West Bank to a new minister in the Defense Ministry, expected to be Religious Zionism party chief Bezalel Smotrich; and a bill to allow Shas party leader Aryeh Deri to serve in cabinet positions despite a recent criminal conviction for tax fraud that carried a suspended sentence.

Eleven justices of the High Court of Justice attend a hearing at the Supreme Court in Jerusalem, on May 3, 2020. (Yossi Zamir/Pool)

Baharav-Miara said, “Without judicial oversight and independent legal advice, we will be left with just the principle of majority rule, and nothing else. Democracy in name, but not in essence.”

She also warned against what she called the politicization of law enforcement, in apparent reference, among other concerns, to expanded powers Ben Gvir is seeking as police minister. “Politicization of the law enforcement apparatus will lead to grave damage to the most basic principles of the rule of law,” she said.

Following her comments, Ben Gvir accused the attorney general of alarmism and defended the legislation he is pursuing to grant greater powers to the minister responsible for the police.

“The attorney general is mistaken in thinking she is the true prime minister,” Ben Gvir charged.

“Every law she doesn’t agree with becomes a danger to democracy,” he continued, adding that the legislation was necessary to allow him to “restore personal security to the citizens of the State of Israel.”

Head of the Otzma Yehudit party MK Itamar Ben Gvir and Chief of Police Kobi Shabtai at a special committee hearing in the Knesset, December 14, 2022. (Yonatan Sindel/Flash90)

Other MKs weighed in against Baharav-Miara as well, including Likud MK Moshe Saada who called her “the attorney general in name but not in essence,” while Religious Zionism MK Simcha Rothman accused her of hypocrisy for failing to apply the same standards to laws advanced by the outgoing coalition.

Lapid, in turn, called on Netanyahu to “rein in” Ben Gvir.

“The disdain for legal proceedings, the blitz of legislation even before the government has been formed, and the attack on officeholders who cannot respond are an affront to the state’s values,” said Lapid.

Outgoing Justice Minister Gideon Sa’ar denounced what he said were “wild attacks on the attorney general by members of the emerging coalition,” which he said were “part of a systematic attempt to restrain the judiciary and the entire public legal service through constant attacks and intimidation.”

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