The lawlessness of the left-wing rioters and the cowardice of the IDF and the police in the face of the Left’s rejecting the voters’ will in the last elections are pushing Israel into crisis.Op-ed.
Israel is ruled by a judicial despotism that is not accountable to the people. Due to their loss of power in elections, the political Left transformed Israel’s legal system to a rule of law mafia; controlling government policies and Knesset legislation. The Netanyahu government’s proposed judicial reform is the first real threat to their control over Knesset and the government; hence the Left’s total war against it. The lawlessness of the left-wing rioters and the cowardice of the IDF and the police in the face of the Left’s rejecting the voters’ will in the last elections are pushing Israel into crisis.
In Israel, the Left comprises center-left and far-left parties, the senior ranks of the security establishment (represented by politically active retired generals), the universities, the vast majority of media outlets, most of the entertainment industry, most of the economic elite, etc. Moreover, the most powerful component of the Left in Israel is the legal fraternity; comprising the Supreme Court, the Attorney General, the state prosecution, and the legal advisors to the Knesset and the government ministries.
Despite the Left’s control over power sources in Israel, the significant majority of Israelis are right-of-center. In the November 2022 elections, right-of-center parties won 64 seats in the 120-seat Knesset. The Left’s parties won 46 seats. Two anti-Israel Arab parties, supported by but not constituent parts of the Israeli Left, won 10 seats.
The Israeli Left, led by Israeli Supreme Court Chief Justice Esther Hayut and her predecessor, Aharon Barak, is in open rebellion against the Netanyahu government and its plans to reform the judicial system. Aided by a media that has abandoned dispassionate journalism for propaganda, many leaders on the Left—including the mayor of Tel Aviv—have called for civil war; deploying riots, protests, boycotts, highway blockages, and lawfare to paralyze and intimidate the Netanyahu government. Former Attorney General Avichai Mandelblit said that violence is inevitable.
In 1995, Aharon Barak, President of the Supreme Court of Israel (1995-2006), decreed that “everything is justiciable”- judges must decide everything; enabling the Supreme Court to carry out a judicial coup d’état. Government lawyers terminate government decisions and legislative initiatives before commencing, by proclaiming them “unreasonable” or “legally problematic” (as opposed to illegal). Government ministers must resign if the Attorney General indicts them.
Justices of the Supreme Court and the Attorney General seized legislative power by abrogating laws and interfering with the legislative process, dictating laws through legal opinions and judgments; and seized executive power by canceling government decisions, and asserting the power to dictate policies to the government.
In advanced democracies, separation of powers, for judicial authority purposes, is that the judicial power has been consigned to the judicial branch. That does not mean the branch is independent of the other branches. They have to be mutually dependent, in order to ensure cooperation; accomplished through “checks and balances.” The judicial branch has to be checked by the other branches, and not just do the checking.
In the United States, for example, the judiciary is not a self-perpetuating oligarchy as it is in Israel. The President nominates and the Senate confirms (or rejects) federal judges. Congress fixes their salaries, regulates the Supreme Court’s appellate jurisdiction, decides whether to create other federal courts, determines the federal judiciary’s budget, and can remove judges through the impeachment process.
Moreover, the judicial power of the United States can be exercised only in suits brought by persons that have a tangible grievance that can be remedied by the court.
Furthermore, because the judicial power is not the only governmental power at the federal level (there are executive and legislative constitutional powers too), the judiciary cannot direct the President whom to appoint to his cabinet.
In Israel, “separation of powers” means that the executive and legislative branches are to have no control over the judicial branch; however, the judicial branch must control the legislative and executive branches.
In democracies, the power of parliament to remove Supreme Court justices is the norm. In Israel, Supreme Court justices cannot be removed from office except by the Court of Discipline, consisting of judges appointed by the President of the Supreme Court, or by the Judicial Selection Committee with the agreement of seven of its nine members; its three justices of the Supreme Court effectively hold a veto.
The rules of law that Barak’s judicial opinions created have no counterpart in advanced democracies: that judges cannot be removed by the legislature, but only by other judges; that a court can countermand military orders; that judges can decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal’” and direct the government to move the security wall that keeps suicide bombers from entering Israel; that any citizen can ask a court to block an action by a government official, even if the citizen is not personally affected by it; that any government action that is “unreasonable” is illegal; that a court can forbid the government to appoint an official who is ethically challenged, and can order the dismissal of a cabinet minister if indicted in criminal proceedings; that in the name of “human dignity” a court can compel the government to alleviate homelessness and poverty; etc.
The Netanyahu government’s judicial reform plan, if passed in full, will realign Israel’s currently unchecked judiciary with the checked judiciaries of advanced democracies. Its main components include: placing judicial appointments under political control; requiring justices to base their judgments on the law, rather than the vague “reasonableness”; banning the Supreme Court from amending or overriding Israel’s Basic laws, which serve as Israel’s quasi-constitution; placing constraints on the Supreme Court’s power to abrogate laws duly promulgated by the Knesset, while providing the Knesset with a mechanism for overriding the Court’s decisions; and preventing the attorney general’s opinions from binding the government that he ostensibly serves.
Recently, Israeli President Isaac Herzog, whose office is largely ceremonial, produced a “compromise” for judicial reform that aligns with the position of the legal fraternity led by Supreme Court President Hayut. Herzog is a bastion of the leftist establishment; a former head of the Labor Party, and the son of Israel’s sixth president, the late Chaim Herzog. Nevertheless, Herzog’s proposal could provide cover to leading members of the Left that want to reach a workable compromise on judicial reform with the government.
Herzog’s proposal recognizes that Israel’s Supreme Court has no checks on its power whatsoever, and recognizes the legitimacy of the political Right. Knesset Opposition Leader Yair Lapid and his partners failed to follow suit.
Previously, many leading politicians on the Left favored judicial reforms similar to the Netanyahu government’s plan. In 1994, Herzog’s father, then-President Chaim Herzog, called for constraining judicial power.
In a past address to the Kohelet Forum, Lapid said, “I have opposed, and I still oppose, judicial activism of the sort introduced by Justice Aharon Barak. I don’t think it is right that everything is justiciable. I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as the judgment of ‘the reasonable person.’ That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal code…”
Former IDF Chief of General Staff Moshe Ya’alon, in entering politics in 2009, said: “Today there are forces, call them the elites, who are influencing the discourse in Israel in a distorted way. It’s manipulative and misleading to the point where we need to be very worried today. I am still very worried. They have a lot of power. They have influence, if you like, on the prime minister. There’s a situation today where we have power centers with authority and no responsibility…. This isn’t democracy. The wealthy have become such a force. The media is a force like this. The Supreme Court is a force like this.”
Despite legislation freeze to allow more debates on the judicial reform, violent protests continue even as Israel buried two young women, victims of a bestial terorist shooting. The protests ostensibly about judicial reform are not actually about judicial reform: They are about canceling the political Right. Opposition parties are not debating the reform plan, they insist the Knesset majority and the government have no right to do their jobs. Opposition members on the Knesset Constitution, Law and Justice Committee are not discussing the draft, suggesting changes, or bringing bills of their own.
In a speech before the Knesset ceremony marking its 74th anniversary, Opposition Leader Lapid said, “the price of the legislation you are leading now is not just the erasure of democracy, it is the painful breakup of our common life.” He further intimated the Left would secede from Israel. Lapid failed to offer any means for averting the threatened societal breakup, except for the government to abandon its proposals. Moreover, Lapid did not propose meeting with Prime Minister Netanyahu and Justice Minister Yariv Levin to attain an acceptable compromise.
Likewise, former prime minister and IDF Chief of General Staff Ehud Barak rejected compromise. Barak demonized President Herzog as Neville Chamberlain for offering to host negotiations between the government and the opposition to avoid the violence promised by Barak, Ya’alon and their allies.
Leading members of Israeli society are calling for civil war; threatening to murder Netanyahu and his ministers; threatening to pull their money out of the country and destroy its economy; lobbying foreign governments to adopt policies hostile to Israel; announcing and orchestrating insurrections, general strikes and violence; etc. The heads of the opposition must act responsibly to restrain the out-of-control protesters before they destroy the country. Jewish communities in the diaspora supporting Israel’s legal fraternity are making matters worse; they should rebuke the people in the legal fraternity orchestrating violence.
To restore and safeguard Israel’s democracy, the Israeli Supreme Court must cease to be a self-perpetuating judicial oligarchy. If Knesset cannot pass the judicial reform, Israel’s democracy will fail.
Dr. Sheyin-Stevens is a Registered Patent Attorney based in Florida, USA. He earned his Doctorate in Law from the University of Miami.
So as suggested here, dismiss the Supreme Court, in handcuffs if need be, and let all members of the Knesset propose new judges.
Make sure their authority is well defined ( task for the goverrnment), and press the reset button.
There is no time to lose!
There is no place within Israel, or any democracy, for a self-perpetuating judicial tyranny.
Victor Sharpe