Once the legal barriers are cleared away, the abuse will inevitably follow

Kudos to President Herzog for his judicial overhaul compromise proposals, but if Netanyahu wanted constructive reform, he wouldn’t have pitched Israel into this crisis

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).

President Isaac Herzog (right) shakes hands with Benjamin Netanyahu after presenting the Likud leader with a mandate to form a new government, at the President's Residence in Jerusalem on November 13, 2022. (Olivier Fitoussi/Flash90)
President Isaac Herzog (right) shakes hands with Benjamin Netanyahu after presenting the Likud leader with a mandate to form a new government, at the President's Residence in Jerusalem on November 13, 2022. (Olivier Fitoussi/Flash90)

This Editor’s Note was sent out Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.

President Isaac Herzog’s suggestions for a compromise on the coalition’s legislative blitz to destroy our independent judiciary may not be ideal. As sketched out in his emotional address to the nation on Sunday night, they make no provision for the most basic guarantees of human rights for all, and they do not seem to counter the government’s determination to henceforth choose our judges — a process for rapidly turning the High Court into a partisan tool of the elected majority.

Their value, most of all, lies simply in the fact that one of the more consensual figures in the Israeli leadership — a president chosen by a larger Knesset majority than any of his predecessors — acknowledged that our country is on the brink of nothing less than “societal and constitutional collapse,” pleaded to halt the “march into the abyss,” and set out a framework for genuine reform, as opposed to the coalition’s malevolently misrepresented planned neutering of the only curb on its excesses.

The trouble is that the ultra-experienced, super-smart Prime Minister Benjamin Netanyahu needs no advice from anyone on reasonable terms for judicial reform. If a constructive adjustment of the sensitive separation of powers between the executive branch and the judiciary were the goal, he would not have appointed Yariv Levin as his justice minister, propelled Levin into the spotlight six days after his coalition took office to present a long-prepared judicial scorched-earth program, and made sure the legislation is being sped through committee and into the plenum to rapidly become law.

What’s breathtaking about the package is the sheer overkill. The various pieces of submitted and envisaged legislation destroy almost every means for our courts to protect any and all Israeli citizens from almost any abuse by the elected majority at least six times over.

The looming laws and amendments, as set out by Levin and Simcha Rothman, the head of the Knesset Constitution, Law and Justice Committee, would rid ministries of the current legal advisers overseen by the attorney general whose job it is to tell ministers when their plans and decisions are illegal. They would enable the coalition to pass laws that are immune to judicial oversight. They would deny the justices the use of a key measure — reasonableness — to determine whether laws and decisions over which they do have oversight are legal or not. They would require unanimity or near-unanimity among all or almost all 15 justices (there are currently conflicting draft proposals on this) to strike down any decision or legislation on which they were somehow nonetheless able to rule. They would then enable the coalition to simply re-legislate any such struck-down law with the narrowest of Knesset majorities. And, finally, of course, the legislation would see the coalition choosing the judges in the first place.

Any single one of these changes, as advanced in their current form, would be deeply problematic. Together, they add up to a kind of constitutional coup, an abandonment of Israel’s foundational democratic values, a revolution in the way Israel is to be governed.

And all this, as Levin made explicit when he disingenuously unveiled his plan for “strengthening democracy, rehabilitating governance, restoring faith in the judicial system, and rebalancing the three branches of government,” is only the “first stage.”

Once the legal barriers are cleared away, self-evidently the abuse will follow. Two coalition agreements already seek the legalizing of discrimination based on religious belief. Several coalition parties are deeply committed to the annexation of the West Bank, the biblical Judea and Samaria, with no provision for equal rights for non-Jews there. Jumping the gun, Shas last week presented then hurriedly withdrew legislation criminalizing mixed-gender prayer and immodest dress in the entire Western Wall area. Fellow coalition party Otzma Yehudit wants the ban on racists running for Knesset lifted — lifted, that is, for Jewish racists. A bill long in the works would restrict the right to demonstrate.

Needless to say, any one of a multitude of gambits would enable criminals to hold ministerial office. Oh, and the termination of the trial of a serving prime minister.

Finance Minister Bezalel Smotrich leads his Religious Zionism faction’s meeting at the Knesset, February 6, 2023. (Yonatan Sindel/Flash90)

In a public Facebook Live session on Tuesday, Bezalel Smotrich, the minister of finance and soon-to-be mightily empowered second minister in the Ministry of Defense, was asked by a participant named Inbal, “Who can guarantee that human rights won’t be harmed?”

Replied Smotrich — a self-declared “proud homophobe” who is also anti-Arab, who is bitterly hostile to non-Orthodox streams of Judaism, who was held by the Shin Bet for three weeks in 2005 for an alleged terror plot to target Israelis on a major highway to protest the Gaza disengagement, who seeks to annex the entire West Bank without equal rights for the Palestinians, and who ultimately wants an Israel run according to the laws of the Torah — “I guarantee it. Here you go: I, the finance minister of the State of Israel, promise not to harm human rights.”

‘Prelude to a dictatorship’

As the opposition National Unity party leader Benny Gantz, a former defense minister and IDF chief of staff and an early advocate of consultation and dialogue to resolve the crisis, warned on Tuesday night, “The citizenry understands that what’s happening here is regime change. This isn’t judicial reform…  This is the prelude to a dictatorship.”

The Israeli public may indeed increasingly recognize what’s at stake, if survey findings and participation in demonstrations, undeterred by idiots calling for taking the law into their own hands, are anything to go by.

Gantz, a short-lived partner in Netanyahu’s 2020-21 government, pleaded with the prime minister to “take responsibility. Stop this oncoming train.”

But of course, as the Herzogs and Gantzes desperately wave their red flags from the side of the tracks, it’s Netanyahu who’s driving it.

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