If this doesn’t stop we’ll be 'like today’s Poland, Hungary'

Former Supreme Court president Barak: Israeli democracy is ‘on a slippery slope’

Majority rule in Israel threatening to overrun individual rights, ex-court chief warns; deputy AG says attacks on judiciary have gone from fringes to mainstream

Former Supreme Court chief justice Aharon Barak speaks at the funeral service for late former chief justice Meir Shamgar at the Supreme Court in Jerusalem, on October 22, 2019. (Hadas Parush/Flash90)
Former Supreme Court chief justice Aharon Barak speaks at the funeral service for late former chief justice Meir Shamgar at the Supreme Court in Jerusalem, on October 22, 2019. (Hadas Parush/Flash90)

The former president of the Supreme Court warned Friday that Israel’s democracy was “on a slippery slope.”

Prof. Aharon Barak, likely the best known and most controversial former chief justice, said that populism in Israel was threatening the rights of individuals and the rule of law.

“Obviously, there isn’t democracy without majority rule, but there also isn’t democracy without individual rights, and an independent judiciary. And these days, every aspect of democracy that isn’t part of the majority rule gets attacked. And slowly, slowly, people are starting to believe that what the majority decides, is democracy,” Barak told a conference of The Israeli Association of Public Law in Haifa.

“If this doesn’t get stopped, we’ll find ourselves in a state like today’s Poland or Hungary,” Barak said. “Today’s war is a war that is essentially about the rule of law.”

Barak, who headed the Supreme Court from 1995 to 2006, and who is most closely identified with the court’s ostensibly activist nature, called today’s judicial officials “victims.”

“The war that we’re fighting, every one of us, we are all essentially victims of what is happening today. We’re fighting today for Israeli democracy, which is in a bad state,” Barak said during a memorial panel for former Supreme Court president Meir Shamgar, a giant of the Israeli judiciary who died last month.

Deputy Attorney General Dina Zilber also spoke at the conference, denouncing the “unprecedented campaign of delegitimization” against legal officials.

Deputy Attorney General Dina Zilber at a meeting of the Knesset’s Economic Affairs Committee on December 3, 2018. (Miriam Alster/Flash90)

Attacks against the judiciary had gone from the fringes of society to the mainstream, she said.

“It’s been a successful campaign,” she said of the delegitimization effort. “Slogans such as ‘the rotten judiciary’ have found their place with the wider public.”

“We can’t ignore the fact that in recent times the public trust in our institution has been diminishing,” she went on, arguing that, whatever the reasons for the decline in trust, the judiciary needed to take on building public trust as another one of its roles.

The judiciary “isn’t supposed to deal with its popularity with the public. But in the current reality, there’s isn’t any choice but to deal with this challenge, and take action to strengthen the public’s trust,” Zilber said.

She appealed to the public for help dealing with the onslaught of what she said were misconceptions, fake news and false mantras.

The warnings came a day after Supreme Court Chief Justice Esther Hayut delivered an impassioned defense of Israeli jurisprudence at the Haifa conference, slamming efforts to besmirch law enforcement and legal officials.

“Recently, voices are growing among us seeking to present the principle of the rule of law as ‘the rule of the legal scholars’ and as a stumbling block that stands in the way of what is called by those people ‘governance.’ There is no greater error than this,” Hayut said, making her first public comments regarding the charges brought last month against Prime Minister Benjamin Netanyahu and the subsequent attacks on the justice system from him and his allies.

Supreme Court Chief Justice Esther Hayut speaks at an event in Nazareth, October 30, 2019. (Meir Vaknin/Flash90)

“The judges, public service attorneys, including the attorney general and state attorney, and all other law enforcement agencies entrusted with their office of law enforcement, do so in good faith, with professionalism and a deep sense of mission,” she said emphatically.

Hayut said that there was room for further oversight on certain areas within the legal system, but criticized “unbridled criticism,” which she said is unfair and even dangerous.

“None of us are free from mistakes and, therefore, control and supervision mechanisms are also required for each of the public servants I mentioned. But there is a great distance between such mechanisms and criticism that undermines the legitimacy of legal institutions in the State of Israel,” she said, adding, “When citizens believe the legal systems is undermined, the possibility of protecting the rights of individuals in society is undermined, the social order is undermined and the individual’s sense of security is impaired.”

After Attorney General Avichai Mandelblit announced indictments against Netanyahu in three corruption cases last month, the prime minister held a press conference in which he accused prosecutors of seeking to oust him from power with false charges in an “attempted coup.”

Netanyahu claimed the investigation had been tainted by various improprieties and accused law enforcement authorities of “selective enforcement” against him. He demanded to “investigate the investigators.”

Prime Minister Benjamin Netanyahu leads the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem, December 1, 2019. (Marc Israel Sellem/POOL)

“I deeply respect the justice system in Israel. But you have to be blind not to see that something bad is happening to police investigators and the prosecution. We’re seeing an attempted coup by the police with false accusations” against him, Netanyahu charged.

His political allies soon took up the refrain, with Justice Minister Amir Ohana, a close ally of Netanyahu within the Likud party, lashing out at prosecutors, portraying them as a cabal that persecutes critics while being supported by a “cult” of fawning reporters. He appeared to allude to a so-called deep-state element within the system, saying “there is another prosecution — a prosecution within the prosecution. There are those who… have managed to establish a perception that a war of light against darkness [is being waged].”

Speaking after Hayut at the same conference, Mandelblit delivered a similar defense of the judiciary, saying its values guarantee the rule of law in Israel.

“These values are the guarantee that Israel will safeguard human rights,” he said. “They guarantee that no person or regime institution will be above the law.”

Taking a direct stand against Ohana in a growing disagreement between the two over the appointment of an interim state prosecutor, Mandelblit said, “I am not looking for a clash with the justice minister, but I do not intend to compromise.”

Netanyahu faces pending charges of fraud and breach of trust in three separate criminal cases, as well as bribery in one of them. He denies any wrongdoing and claims to be the victim of a witch hunt involving the opposition, the media, the police and state prosecutors.

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