Natan Sharansky, the former Prisoner of Zion and icon of the struggle for Soviet Jewry, is adamant that the judicial overhaul package being advanced by the Netanyahu coalition does not constitute the demise of democracy in Israel.
“Am I concerned that we are becoming a dictatorship like the Soviet Union or, today, Putin’s Russia? No,” Sharansky, a former minister in governments led by Netanyahu and a previous head of the Jewish Agency, told The Times of Israel in an interview.
If the overhaul goes through in the form currently advanced by the coalition, he said, “We will not stop being a democracy.” But, he added, “we will have to fight much harder in order to restore the balance between the court and the Knesset.”
“The fact that this reform really takes it from one extreme to the far extreme on the opposite side is bad,” Sharansky said. And he expressed opposition to specific elements of the legislation — stressing that while the politicians should have the last word on matters of policy, the judiciary must have the final say on issues of human rights.
He also objected to the “brutal” way in which the overhaul was being accelerated through parliament, and argued that such far-reaching and important legislation needed to be shaped through dialogue and adopted with broad agreement.
At the same time, however, he critiqued the opposition for what he regarded as its unwillingness to negotiate, and what he considers its misguided belief that it can thwart the legislation through repeated demonstrations. Rather, he said, the opposition should set out positions on which it is ready to negotiate and highlight aspects of the legislation that it considers unacceptable, making detailed, coherent and principled arguments to the public, in order to make it as difficult as possible for the coalition to push through the legislation as is.
Were he advising Netanyahu, he said, he would highlight the imperative for consensus, and would advocate that all relevant expert voices be heard during the committee stage and their views taken into account.
For instance, he said, “What I’m saying is invite [Alan] Dershowitz and [Irwin] Cotler,” two renowned, staunchly pro-Israel legal professors who have raised concerns and objections to the overhaul proposals. “It’s very hard to think of stronger defenders of Israel. Invite them to the committee to hear what they think of the reforms. Invite leading businessmen. Let them explain what is problematic.”
When it was put to him that numerous experts have spoken at the Knesset judicial committee, he responded that Dershowitz and Cotler “are people who will be very difficult to bulldoze or to dismiss.”
Sharansky rejected the notion that Netanyahu was engineering the overhaul in order to escape his trial. “I hope this reform will not pass as it is. But to think that all this is being done because Bibi Netanyahu wants to save himself from the trial, I think it’s absolutely unfair, and a distraction from the reality.”
If, however, passage of the overhaul was followed by legislation designed to extricate the prime minister from his legal difficulties, it should be stopped, he said. “If there will be legislation that a prime minister cannot be put on trial, yes, I agree, that would be specifically ‘Bibi Netanyahu’s law’ and it would have to be stopped because it cannot have retroactive meaning. But that’s not what I understand is happening at this time.”
For Netanyahu, said Sharansky, this is “a very problematic government. Netanyahu, for the first time, is on the left, the extreme left, in the government on the questions of politics and on the questions of religion and state. He’s religiously and politically on the left and the rest of the government is to his right. That extremely limits his room for maneuver. Secondly, he is so dependent on his coalition partners… I’m not saying this as a positive fact. I’m saying it as a very negative thing.”
As a consequence, said Sharansky, “we can see that there are a number of extreme demands which he’s not ready to resist: Giving [Bezalel] Smotrich rights in the Ministry of Defense. Letting [Itamar] Ben Gvir and not the police commissioner take responsibility for police investigations. That’s almost a game changer and I don’t know if people understand how problematic it is. I don’t think Netanyahu believes in it. He agrees to it in order to keep this coalition in one piece.”
Sharansky spoke to The Times of Israel via Zoom on Sunday. The following transcript has been edited for clarity and brevity.
The Times of Israel: I think of you as somebody who understands democracy, who understands at a deep and very personal level how important it is. And I know you as somebody who has been very close to Prime Minister Netanyahu. Do you share the sense that Israel is heading to a crisis of democracy? Or do you incline towards the Netanyahu claim that the constraints that he is about to impose on the High Court are actually a strengthening of our democracy?
Natan Sharansky: I disagree with both sides.
Very often, I run into people on the street who say, Of all people, you and [fellow former Prisoner of Zion, Likud MK] Yuli Edelstein should understand how dangerous it is that we are becoming like Russia, that we are becoming a dictatorship.
And I say, You really don’t understand what is Russia and what is dictatorship. Dictatorship is no free elections. Dictatorship is when there is no way to write an article or to make a statement that disagrees with the authority. Dictatorship is when the judges have only to read the texts which they are given by the politicians.
I don’t believe that we are moving in this direction. I really don’t believe it.
On the other hand, the fact that the government is not ready to have any serious dialogue — that its position is, ‘We were elected, so now we will decide,’ and that the judges are not elected [by the public and therefore should be greatly constrained] — is absolutely ridiculous.
So one side says it won the elections [and can do whatever it wants]. And the other side believes that it doesn’t need to enter a dialogue [over the proposals] because it can get them canceled through demonstrations, through mobilization, by utilizing the denunciation that we are becoming a dictatorship, and that if it enters negotiations on this or that paragraph, it would be accepting the principle [of the need for judicial reform], and it doesn’t accept the principle.
So I’m really concerned by the lack of willingness to negotiate from both sides.
I’m very concerned about this paragraph in the proposed legislation that would enable 61 [Knesset members to override a decision by the High Court to strike down a law]. If I understand correctly, that means practically every decision of the court can be erased by the Knesset. The claim that the Knesset is more important [than the court] because it was elected is simply ridiculous — because democracy means both the rule of the majority and that there are individual rights that no majority can take away.
It is judges who must be able to guarantee that human rights are protected. When it comes to political agreements, the policies of the state, economic and other policies, the Knesset is responsible.
And that’s why I believe that on the question of human rights, the last word has to be with the judges, and on questions of policy the last word should be with the Knesset.
The debate should not be about whether you’d need 61 MKs or 65 [to override the High Court]. It has to be over what kind of issues require that the last word be with the Knesset and what kind of issues require that the last word is with the court.
After I wrote about this on Facebook, I heard from all sides — including from the government and Kohelet [Policy Forum] — that, in fact, they are willing to negotiate about this point. But unfortunately, there are no negotiations. (In a February 6 Facebook post, Sharansky lamented the polarization over the proposed reforms, and urged the adoption of President Herzog’s proposals as a basis for urgent negotiation.)
I fully agree that the judges should not have the right to veto who will be made a judge, and the government also should not have a veto.
Again, these are points for negotiation. But there is no way to start negotiations because of the positions both sides have taken. And of course, first of all, it must be the government [that shows a genuine willingness to negotiate].
The fact that we are not negotiating — that’s really a serious crisis. I can offer many ideas on how the negotiations can be conducted, but our president’s proposal was very positive and very good, and yet, one or another way, neither side was ready to support it.
You set out three reasons for why we are not on the road to becoming Russia, where there are no free elections, no way to criticize the leadership, and judges who must simply read out what they are told. But one of the bills that is being pushed by Simcha Rothman in his Knesset judicial committee applies limits to the court’s right to intervene such that there will be no protection, no anchoring, of all kinds of basic rights, including equality and freedom of expression and the holding of elections. Now, Rothman ridicules the notion that they would cancel elections, but if Rothman’s proposals go through, he acknowledges elections would not be protected. Furthermore, if the court is unable to intervene, the current coalition could change the rules of elections so that this kind of coalition never loses power — by limiting the vote of Bedouin in unrecognized villages, say, or allowing Israelis living abroad to vote.
Moreover, the nature of the planned new judicial selection panel is such that, as you say, the politicians will be choosing the judges anyway. Doesn’t that amount to judges simply reading out a text? The coalition’s handpicked judges, relied upon to rule the way the coalition would want them to rule?
As for the issue of dialogue and the opposition thinking it can prevent this overhaul through demonstrations — I’m not sure that that’s the case. But isn’t it hard to expect people to enter a dialogue now that the first reading on core legislation has passed, because at a moment’s notice, the coalition can enact this as law?
I do believe that, on the question of all human rights and rights for minorities, it is the court that must have the last word. And that’s why this 61 override is very problematic, and Kohelet sees this and is ready to negotiate about it.
It’s true that the government, and [Justice Minister Yariv] Levin, absolutely are not ready to negotiate it. But Levin said he was ready to meet right away with [opposition party leaders Benny] Gantz and [Yair] Lapid. And they said no. Instead of saying no, they should say, as a negotiation, You halt the legislative process for the 61 override and we can agree that judges should not have a veto on who will be appointed. If they put this as a negotiating point and the government refuses, that makes their position much stronger. But from the moment that this process started [with Levin unveiling his proposals], the opposition said, You must first accept that this whole package is not good and stop your process, and then we’ll start negotiating.
I’m not defending [the coalition’s approach]. I don’t like the way Levin and Rothman are doing it. The coalition is acting as though it only has two weeks to make all the changes. Without serious dialogue in the committees, and publicly, such very important laws must not be passed.
But the opposition hasn’t even made a minimal effort to bring about serious negotiation. Serious negotiation doesn’t mean shouting in this committee, but rather, if the committee isn’t listening, then putting positions before the public, saying we are ready to compromise on some aspects, but we demand as a minimum some other things — to start de facto negotiating.
Instead, [the head of one left-wing party] said she prefers to have all these demonstrations than to put out any specific negotiating points, because it all has to be canceled, and that will happen if we get a million people demonstrating. I don’t believe that’s a wise approach.
Again, I think it’s very dangerous if the judges do not have the last word on questions of human rights. That’s absolutely essential.
I don’t know, it didn’t occur to me, that elections could be in danger. But in my Facebook post I set out other examples of what could happen [on issues where the court would have stood in the way] — that this coalition will say that everybody who supports BDS will not have the right to vote, or the left [if it comes to power] says everybody who lives in Judea, Samaria has no right to vote. So you cannot let a right-wing Knesset or a left-wing Knesset pass a law that limits the rights of people who have different views.
But you cannot resolve this without negotiation.
You think the opposition is being foolish and self-defeating and should respond differently. But the fact is that a majority took office and six days later the justice minister set out radical proposals which have actually become exacerbated by additional proposals. And while key coalition figures are saying that they’re ready for negotiation, they are continuing to advance the legislation and continuing to insist that even if there are negotiations, it will be enacted without delay and broadly along the lines that they’ve set out already.
Am I concerned that we are becoming a dictatorship like the Soviet Union or, today, Putin’s Russia? No. Am I concerned by the fact that such important legislation is being done so rapidly, brutally? Yes.
But again, the real problem is, thus far, no negotiations started. And the government is to blame first of all, but the opposition is not doing the minimum to demonstrate that it is ready for compromise, for negotiating.
After all, the overwhelming majority of Israelis agree that there has to be reform. Almost all the years that I’m in Israel, I heard it from the right and from the left.
But the fact that such important reform is being imposed, without any negotiations, that’s what is alarming. I ask some of the people who stop me on the street, what exactly are you demanding? Very few people say that we demand that there be negotiations. People say, well, we demand that they cancel this proposal.
I agree that this proposal was presented in a very brutal, aggressive way. I agree that they had a technical right to do so. The way to stand against it is to negotiate.
From my point of view, an override with 61 MKs is absolutely unacceptable, and here we have to talk. What type of committee for electing judges is more acceptable? Judges shouldn’t have a veto; but the coalition shouldn’t have a veto either. I didn’t hear any proposals for compromise — only what we have now must not be touched, or what we have now is unacceptable.
Because the proposals are so extreme. Lots of people for a long time have been concerned that the High Court is not diverse enough and that it is overly interventionist…
But it’s not about diversity. It is about the consequence. The fact that judges are deciding who will be the next judge, that is something absolutely unacceptable.
As things stand, the way the committee has been set up, both judges and politicians have had to agree on candidates. This change that they’re proposing provides an overwhelming majority for the coalition. The change that they’re proposing to the override means everything that the judges somehow could still manage to strike down, they can re-legislate, but in fact they’re so radically limiting what the judges could intervene on in the first place that it’s almost unnecessary.
I understand why, in your soul, because you’re a democrat and a fair-minded person, you say, well, we need to negotiate. But the coalition is pressing ahead with the legislation. It says it wants to talk, but not pause the process, and it’s also saying that the ultimate legislation has to be broadly similar to what it has proposed already, and it has to be done by Passover.
I agree that the way it is being carried out is brutal. But the question [for those who are opposed] is how to make it more difficult [for the coalition to carry it out in this form]. And that’s by setting out proposals for compromise. You are not the government. You cannot set out your proposals and implement them. Like it or not, a majority agrees that there is a need for reform. A majority agrees, I think, that judges should not have a veto [on who becomes a judge]. So choose things on which a majority agrees and differentiate between those that you consider to be absolutely unacceptable and those on which you are ready to negotiate.
I’m not saying that the government will agree. The way Levin and Rothman are behaving does not [suggest that they will]. But you will make it much more difficult. After all, I am sure that among those who voted for the coalition, the majority wants dialogue, the majority wants such important laws to be advanced with a broader consensus. You can see this in the polls. I just saw one showing that many people who voted for the coalition say they would not do so [if elections were held now]. Make it more difficult [for the coalition to pass the laws in this form]. That’s what I’m saying.
I’m not faulting the opposition exactly as I am the coalition, but I have to say that these shouts about “this is the end of democracy” don’t help. Offer a compromise proposal. Make it very public. Say, this is what we demand, and on this we are ready to negotiate. Make it more difficult for the government. You’re not making it more difficult simply by holding big demonstrations.
They just came to power. They can be in power for four years. But you can make it very difficult for the members of Likud if they understand that they could pay a serious political price for refusing to negotiate. The fact that Lapid said at the very beginning — I don’t know what he’s said now — that he was not going to set out any specific terms because it would indicate a broader acceptance [was a mistake]. You lost the election. You have to do the most you can from the opposition. Negotiate. Say you believe, on the one hand, that this or that clause presents a very big danger to human rights, but on the other, the majority of the people did want reform.
There are many ways to go about [judicial reform] without giving such overwhelming power to the prime minister and to the government, especially taking into account that here, I agree, we don’t have [other] checks and balances
I don’t think that anybody was really against the judges having the last word on human rights. I hope that the majority understands what human rights mean. But people are bewildered by the idea that judges are voting for judges [on the selection committee].
I believe there are many ways to go about [judicial reform] without giving such overwhelming power to the prime minister and to the government, especially taking into account that here, I agree, we don’t have checks and balances [other than the High Court]. In America, the president nominates the judges, but there are many checks and balances, and discussions in the Senate and so on. And the members of the Senate are personally elected, not chosen by the party heads. So the president doesn’t [determine everything]. All this has to be explained.
I don’t think that people, on both sides, understand what we are arguing about. I mean, Levin understands, Rothman understands, but we have to make it clear to the public.
When people say, well, we are losing all our rights, I say explain to me why that’s the case. Nobody can explain to me. They simply “know” that we’re becoming Russia.
All the dialogue between coalition and opposition, in the committees of the Knesset, and in fact also in the press, is broken.
If I was to propose it today to the prime minister, I would say it is very important, from my experience, that when a Knesset committee passes any legislation, all of the sides involved are invited. Some years ago, this stupid law passed about BDS — that those who support BDS will not be permitted to enter the country. I said, Call the people who are fighting BDS, ask the Jewish Agency emissaries on campus, ask Hillel, whether this will help them fight BDS [or have the opposite effect]. But nobody [like that] was invited to the committees. Nobody was asked. And, it turned out, it was very problematic.
The same applies here. What I’m saying is invite Dershowitz and Cotler. It’s very hard to think of stronger defenders of Israel. Invite them to the committee to hear what they think of the reforms. Invite leading businessmen. Let them explain what is problematic.
The opposition can demand that such people are invited. When I was the minister of industry and trade, it was impossible that any law about trade would be approved without inviting all those from the field, or a law about trade unions without trade union representatives being heard.
If I were the opposition, I would not only start negotiating through the newspapers, by saying, okay, we are ready immediately. You want [to start in] 24 hours. Okay, 24 hours. Here are our proposals. But I would also try to insist that such and such respected people be invited for the committee hearings, not simply interviewed in the media.
The government is rightly the first to be blamed for the fact that we don’t have any normal dialogue. But I don’t think that the opposition is doing everything in its power in this regard. That’s the role of the opposition. The role of the opposition is not to pass its own law, but to make it publicly as difficult as possible for the government to behave in such a brutal way. I’m not sure that simply holding repeated demonstrations, without any other dialogue, can solve the problem.
I’m sure you’re right that neither Dershowitz nor Cotler have appeared, but there have been lots of experts who were given the opportunity to set out positions, and the committee bulldozes on regardless.
But [Dershowitz and Cotler] are people who will be very difficult to bulldoze or to dismiss.
Do you think Netanyahu has approached this and initiated this in good faith? Do you think he genuinely believes that this package is beneficial, as he says, and a strengthening of democracy?
Well, I can’t say about this package, but I can say that for many years I heard from Netanyahu, and from many people long before, that in the era of Aharon Barak, everything became judicable and that the judges were selecting themselves. I heard that from many people, including those who absolutely oppose this reform.
I hope this reform will not pass as it is. But to think that all this is being done because Bibi Netanyahu wants to save himself from the trial, I think it’s absolutely unfair, and a distraction from the reality
And Netanyahu, of course, long before he was on trial, 15 years ago, 20 years ago, he strongly supported the courts. He knew that the High Court, in the international arena, was highly respected, which helps us. But he also believed, as Dershowitz and Cotler believe, that there are things that have to be corrected. The fact that this reform really takes it from one extreme to the far extreme on the opposite side is bad.
I don’t think that Netanyahu is doing all this to get out of his trial. Even if it passes, and I hope it will not pass in this form, to think that the Supreme Court will be reconstituted so quickly as to change the court’s position on the results of this trial… There might be two, three new judges by the time the trial is finished…
Again, I hope this reform will not pass as it is. But to think that all this is being done because Bibi Netanyahu wants to save himself from the trial, I think it’s absolutely unfair, and a distraction from the reality.
In the terms of the various legislation that is going through, it would be very easy [to extricate Netanyahu from his trial].
Maybe. But I’m not speaking about various legislation. I am speaking about this specific [reform package]. If there will be legislation that a prime minister cannot be put on trial, yes, I agree, that would be specifically “Bibi Netanyahu’s law” and it would have to be stopped because it cannot have retroactive meaning. But that’s not what I understand is happening at this time.
Indeed, what’s happening at this time are proposals that would radically restrict the court’s ability to intervene, which would then open the door to all kinds of legislation that could very easily put an end to Netanyahu’s trial.
Well, I agree that to create a situation in which the Supreme Court in fact has no say is very dangerous. It has to be challenged immediately, by saying that there are points on which we are ready to negotiate, but we are not ready to agree that the prime minister or the coalition will be appointing the judges. That’s for sure. Or that they will be erasing every decision of the Supreme Court. These are the points that have to be made in the framework of this [current reform] legislation — that there are points on which we are ready to make compromises, but we are not ready to make compromises in these two areas.
I want to come back to the question of whether Netanyahu is acting in good faith. You note that you have heard him for a long time supporting reforms. But you are also saying that the proposals that have been presented by his justice minister are going to the other extreme. So why is Netanyahu initiating and championing and advancing a radical switch to the other extreme?
I think it is a very problematic government [for him]. Netanyahu, for the first time, is on the left, the extreme left, in the government on the questions of politics and on the questions of religion and state. He’s religiously and politically on the left and the rest of the government is to his right. That extremely limits his room for maneuver.
Secondly, he is so dependent on his coalition partners. For three years, they were so loyal [to him]. And so it is very difficult to undermine them. I’m not saying this as a positive fact. I’m saying it as a very negative thing.
We can see that there are a number of extreme demands which he’s not ready to resist: Giving Smotrich rights in the Ministry of Defense. Letting Ben Gvir and not the police commissioner take responsibility for police investigations. That’s almost a game changer and I don’t know if people understand how problematic it is. I don’t think Netanyahu believes in it. He agrees to it in order to keep this coalition in one piece.
As for Levin, he had prepared all this in advance. I didn’t talk to Netanyahu for a long time. I don’t know whether he agrees fully with Levin, which I doubt, or simply he’s afraid to strain this government too much.
From the Netanyahu I know, he would very much want a broader consensus. Positions like an override with just 61 MKs, I don’t think that ideologically he believes in it. Why is he not interfering? Why is he letting them go so far? I think it’s both: He feels that he should not undermine this coalition from the beginning, and maybe his views have changed. Maybe he really feels that the change has to be less dramatic, but that he cannot reach that result without [initially] going close to the maximum. Maybe it’s all in order to start negotiations at the very last moment, and to get a very good compromise instead of a bad compromise. Maybe.
I do want to hope that he, as in the past, believes that such an important decision has to be reached not by such brutal force, but I don’t know.
If the legislation goes through as planned, you still are not concerned about this becoming a very different Israel, with its democracy heavily undermined?
If it goes through as it is, and I hope not, there will be some points that should have been changed long ago. But there is a really serious danger that the Supreme Court will lose its position [as the last word] on questions of human rights.
But I do believe that we would still have the means to fight, to correct, to repair, which no dictatorship has. And that’s why this conclusion, that if this [package is enacted] we stop being a democracy, is wrong. We will not stop being a democracy. But yes, we will have to fight much harder in order to restore the balance between the court and the Knesset.
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