Judicial coup threatens Israeli democracy

Mar 17, 2023
The 2023 Israeli anti-judicial reform protests Tel Aviv 4,3,2023

Israel is facing the most significant challenge to its existence since the establishment of the State in 1949.

For the first time in its short history this is not a military threat of annihilation from an Arab neighbour with two of which (Egypt and Jordan) it has since formed peace treaties and a normalisation of relations. The challenge comes from its government’s plan to bulldoze through the Knesset revolutionary reforms to the judicial authority and powers of the Supreme Court. The governing coalition has a slim parliamentary majority to do so. However, it can only be stopped if three Likud dissidents vote against the reforms, or if Israel’s President Yitzhak Herzog can persuade the Government and Opposition to negotiate cardinal changes in the proposed laws that remove the threat of a judicial coup replacing Israel’s democracy with an authoritarian dictatorship.

Israel justly prides itself on being the only country with a western system of liberal democratic government in a region ruled by despotic Heads of State. The Supreme Court has been a persistent defender of civil rights in Israel and its judicial rulings when sitting as the High Court of Justice have won the respect of colleagues in many countries worldwide. Like some Western democratic countries, including Britain, Israel has an unwritten and uncodified Constitution based on Common Law, nine Basic Laws and material constitutional law of cases and precedents grounding the authority and powers of the Supreme Court which allows it to disqualify any law contradicting it.

The Supreme Court has long been criticised as “an old boys club” to which incumbent Justices appoint new judges from the lower courts and from the Office of the Attorney General. The procedure is narrow and unrepresentative of Israel’s diverse population, say the critics.

The Judicial Selection Committee presently comprises three incumbent Justices of the Supreme Court including its Chief Justice, two representatives of the Israel Bar Association, two Cabinet Ministers including The Minister of Justice and two Knesset Members. The Supreme Court can swing to a majority of seven in the nine-member Committee needed to appoint a favoured candidate. Here the government wishes to break the Court’s control by enlarging the Committee to 15 members from a broader spectrum of society and thus assure government- sponsored candidates a clear majority of the votes in the selection results.

The government’s proposed reforms also seek to reduce the Supreme Court’s influence over public policy; to revoke its judicial review of the legality or constitutionality of laws passed by the Legislature; and thirdly departing from current practice Legal Advisers to Government ministries would become political appointees of the incumbent Ministers and their recommendations would be non-binding upon the Ministers.

The government’s proposed reforms of the Supreme Court will end what its critics argue is ‘government by judicial dictatorship’ and their fix will strengthen Israeli democracy.

Leaders of the ultraorthodox parties have long vented grievances against what they see as unsympathetic rulings of the Supreme Court in cases affecting the religious and economic interests of their rapidly growing communities. Israel’s nationalist religious Zionists share similar grievances at rulings of the Supreme Court ordering the government to evacuate Jewish settlement outposts in the territories squatting on land privately owned by Palestinians.

The Leader of the Opposition, Yair Lapid, denounced the Coalition Government’s judicial reforms as no less than a “legal overthrow of Israel’s democratic system” and that without the checks and balances between the legislative, executive and judicial authorities Israel’s democracy would inevitably be replaced by an authoritarian dictatorship.

Prime Minister Binyamin Netanyahu maintains a façade of neutrality, urging the public to show restraint in its opposition to the reforms. But behind the scenes is considered to be the mastermind of the judicial revolution in his personal vendetta to castrate the Supreme Court and the Office of the Legal Adviser to the Government and leave them powerless to prevent the Knesset from passing a subsequent law that dismisses his multiple corruption trial and saves him from going to prison “in disgrace for breach of public trust”.

The benefit of these judicial reforms the Minister for Justice Yaron Levin says will release government decision making and public policy from the “meddlesome interference of the courts and enable the executive to govern”.

Saturday night mass demonstrations entered their tenth consecutive week. The largest of them in Tel Aviv drew an estimated 200,000 people crowded under a sea of unfurled Israeli national flags into downtown Tel Aviv which quickly spilled into connecting streets and alleyways. Some 50,000 people demonstrated in Haifa; some 10,000 in Jerusalem outside President Herzog’s official residence with smaller number of demonstrators in Beersheba. Groups of tens and hundreds more also protested at intersections on highways, on bridges outside townships and rural villages across the country. Additional mass demonstrations in mid-week of tens of thousands were staged outside the Knesset in Jerusalem and protestors disrupted traffic for hours along major highways.

Israel’s high-tech and banking sector warned that the depreciation of the Israeli shekel by 8% vis-à-vis the American dollar in foreign markets and the pull-out of vast sums of foreign investment and private domestic savings destabilises Israel’s hitherto strong economy making it unattractive to long term investment by international corporations, though Finance Minister Bezalel Smotrich is complacent that the Israeli economy can weather the storm.

Internal Security and Police Minister Itamar Ben Gvir , a former defence attorney who represented radical young settlers accused of rioting and vandalising Palestinian property, poured mounted police to the Tel Aviv mass demonstration and instructed strike breaking units to deploy an iron fist in growing violent clashes accused the demonstrators of being “anarchists, unpatriotic and resorting to acts of terror funded by foreign far left organisations”.

Nothing is further from the truth. The protests cut across the political left and right and religious-secular divisions drawing on massive support from middle class professionals, senior Ministers in former Labour and Likud governments, prominent past Labour and Likud party Knesset Members, retired Chiefs of Staff, Chief Justices and Judges of the Supreme Court and legal experts.

The protests are of deep concern to the military command who fear they may spread to the regular forces after an isolated though disturbing case of conscientious objection when a high ranking reservist fighter pilot failed to present himself for pilot training.

Israeli Arab citizens who constitute a significant 20% minority of Israel’s population of 9.7 million, are notably absent from the demonstrations. They consider the public uproar over judicial reform to be an issue affecting Jews only, though individual Arabs participate in the protests because they realise that if the reforms harm the civil rights of minorities, the Arab sector will be the first hit. Their ten MK’s remain publicly silent on the matter. Their agenda since the Six Day War remains radically anti-Israel and pro-Palestinian in solidarity with the Palestinians of the West Bank under Israeli occupation and Gaza under Hamas rule. And so, they have paid less attention to the national needs and quality of life of their own citizens in Israel and to facilitating their integration as an accepted ethnic minority in the national mosaic of Israel.

As a constitutional figurehead symbolising national unity, President Herzog, who is a lawyer by training, described in a live television address last week the drama storming the nation as a “national nightmare” and said he is prepared to pay “any price to resolve the government’s plans for a judicial coup.” That legislation he said is “misguided, brutal and undermines our democratic foundations.” The choice is clear he told Israeli politicians: “either a solution or a catastrophe.”

Herzog held proximity talks with representatives of the government coalition and the Knesset Opposition to persuade their leaders to accept his five point roadmap as the basis for negotiating agreed amendments to reform the Supreme Court. Both sides have resolved most of the issues of disagreement, Herzog said. The sticky point is on a moratorium to halt continuing legislative preparations.

Opposition leaders Yair Lapid (Yesh Atid) and Benny Gantz (National Unity Party) demand that the government must completely halt all legislative preparations but the Minister for Justice Yariv Levin resolutely says the Bills have passed the first reading stage and preparations for the second and third readings will continue unabated.

Knesset Chairman of the Constitution, Law and Justice Committee, Simha Rothman, quietly said that committee work is temporarily stopped and will resume in two weeks’ time so that positive developments to resolve the crisis may emerge in the coming days.

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