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Op-ed

Justice minister sounds death knell for Israel’s inadequately protected democracy

Netanyahu loyalist claims his ‘reforms’ fix imbalance between branches of government. In fact, he’s neutering the High Court, the only defense, for anyone, against any coalition

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Incoming Prime Minister Benjamin Netanyahu (right) speaks with incoming Justice Minister Yariv Levin during a vote for the new Knesset speaker in the Knesset on December 13, 2022. (Yonatan Sindel/ Flash90)
Incoming Prime Minister Benjamin Netanyahu (right) speaks with incoming Justice Minister Yariv Levin during a vote for the new Knesset speaker in the Knesset on December 13, 2022. (Yonatan Sindel/ Flash90)

Unveiling proposals to “reform” Israel’s judiciary, Justice Minister Yariv Levin on Wednesday night sounded the death knell for our thriving but inadequately entrenched democracy.

A Likud ally of newly returned Prime Minister Benjamin Netanyahu in the hardline coalition that took office only last Thursday, Levin described his plan as bolstering democracy, strengthening the judicial system and “rebalancing the three branches of government.”

In fact, the proposals he unveiled, which he said were merely the “first stage” of a “long overdue” overhaul, almost entirely remove the capacity of Israel’s top court to protect any and all Israelis against excesses and abuses by any governing majority.

At the heart of his reform, Levin said, was for the Knesset to legislate an “override clause,” under which the justices of the High Court will be radically constrained in seeking to nullify legislation and government decisions they find to be discriminatory, undemocratic and/or in contravention of Israel’s quasi-constitutional Basic Laws.

Once his proposals become law, he declared, the High Court will be explicitly prevented from deliberating and ruling on those Basic Laws, and will only be able to strike down Knesset legislation by a panel of all the court’s judges and with an undefined “special majority.” What’s more, he specified, the Knesset would be able to re-legislate a law blocked by the court, with the support of just 61 MKs in the 120-seat house. Only if all 15 judges unanimously agreed to strike down a law would the Knesset be barred from re-legislating it in that term of parliament. (Many members in today’s opposition might support an override clause, but a carefully weighed one, in which a substantial proportion of opposition votes would also be needed to re-legislate a law blocked by the court.)

Levin also proposed reconstituting the panel that chooses the justices in the first place, with a change to the selection committee that, again, gives ultimate power to the political majority of the day. As things stand, “judges choose themselves, in back rooms,” he claimed inaccurately.

Levin argued that the justices had brought this neutering upon themselves, by overreaching and intervening untenably in the work of Israel’s elected politicians. (The top court has struck down 22 laws in the 75-year history of the state.) The court’s increasing involvement in government decisions and Knesset legislation “have brought public faith in the court system to a historic low, undermined governance and harmed democracy,” he charged.

Justice Minister Yariv Levin holds a press conference unveiling his plans to overhaul Israel’s judicial system, at the Knesset on January 4, 2023. (Olivier Fitoussi/Flash90)

In fact, the court has filled a vital role in protecting democracy given the limitations and peculiarities of the Israeli system.

While Levin distinguished in his remarks between the executive and the legislature, presenting them as two separate branches of government, in Israel, they amount to the same thing. A like-minded governing majority — such as the 64-strong coalition Netanyahu now heads — can push any legislation it wishes through parliament. Furthermore, Israel has no constitution, no bill of rights, no second parliamentary chamber. The High Court is thus the only brake.

The importance of that role has only been underlined in recent days, with the ascent of Netanyahu’s right, far-right, and ultra-Orthodox coalition, whose members’ various agendas include proposed legislation that could allow service providers to refuse clients, customers, patients, etc., if they felt this was required by their religious beliefs — an instance of ostensibly legalized discrimination that the High Court, unshackled, could be relied upon to resist.

Tellingly, Levin unveiled his proposals on the eve of a High Court hearing on the legality of Arye Deri, the leader of the coalition’s ultra-Orthodox Shas party, returning to ministerial office. Deri negotiated a suspended sentence less than a year ago in a plea bargain for tax offenses that the Jerusalem Magistrate’s Court accepted only on the understanding that he was retiring from public life.

Israel’s attorney general told the court earlier Wednesday that she could not defend Deri’s appointment as interior minister, health minister and deputy prime minister, because it was “unreasonable in the extreme.”

Among the proposals unveiled by Levin was to simply cancel the notion of “reasonableness” as a legitimate legal test.

Former prime minister Benjamin Netanyahu arrives at the Jerusalem District Court for a hearing in his corruption trial on May 11, 2022. (Yonatan Sindel/Flash90)

Netanyahu chose not to be present alongside Levin when he unveiled his revolutionary plan. But the prime minister stands to be a principal beneficiary.

Netanyahu is on trial in three criminal cases, denies wrongdoing in all of them, and insists that he has been framed, in part by the state prosecution.

Some of his coalition allies are pushing for legislation to retroactively remove from the criminal code the “fraud and breach of trust” charge common to all three cases, and to provide retroactive immunity for a serving prime minister for alleged crimes committed while in office — a so-called “French law.” Since Israel has no term limits for its political leader, unlike France, such legislation would protect Netanyahu for so long as he remains in power.

The High Court could ordinarily be relied upon to thwart that kind of legislative abuse, as well. Under Levin’s proposals, it would likely be both unwilling and unable to do so.

Supreme Court Chief Justice Ester Hayut (C) and fellow justices at a hearing, October 6, 2022. (Jonatan Sindel/Flash90)

Underlining the core flaws and disingenuousness in Levin’s presentation is the fact that, with those 64 votes, what he unveiled on Wednesday night as proposals to be “deeply” discussed in the Knesset can in fact be rammed through into law almost instantly should the coalition so choose.

Indeed, the Netanyahu-led coalition swiftly changed elements even of those misleadingly named Basic Laws in a legislative blitz last month in order to meet the demands of some of its constituent parties before it took office.

Opposition leaders rushed Wednesday night to label Levin’s proposals as “a political coup.”

That might sound curious, given that the people allegedly staging it are already in power. But that’s the point: Once these “reforms” are instituted, the people in power need never relinquish it. There will be no other branch of government to resist them.

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