The prime minister has unleashed his justice minister to neutralize the High Court, the only effective brake on government excess, and secure him unbridled power
Today, 6:40 am
Incoming Prime Minister Benjamin Netanyahu (right) with incoming Justice Minister Yariv Levin in the Knesset on December 13, 2022. (Yonatan Sindel/Flash90)
Yariv Levin has been formulating proposals to curb the powers of the High Court of Justice for 20 years, he told the nation last week. And for most of those 20 years, though Levin was a loyal and respected colleague in their Likud party, those revolutionary plans placed him at odds with Benjamin Netanyahu, a longtime outspoken defender of the independence and authority of the court.
Returning to office on December 29, however, Netanyahu signaled that the path was clear for Levin to introduce his long-conceived judicial revolution by appointing him as justice minister. And just six days later, Levin unleashed his proposed onslaught.
Unveiled with what was either deliberately threatening or thoroughly indifferent timing, on the eve of a High Court hearing on petitions against the “reasonableness” of recidivist criminal Shas party leader Aryeh Deri’s return to ministerial office, one of Levin’s four promised “first stage” changes would cancel the very capacity of the justices to invoke “reasonableness” as a measure of legality; if he has his way, the kind of judicial examination currently in progress regarding Deri’s fitness for office would simply be forbidden.
Overall, indeed, Levin’s “reforms” would combine to render the court almost totally incapable of thwarting any of the goals of any Israeli governing majority, as advanced via government decisions or Knesset legislation. His proposals, already taking shape with lightning speed as draft legislation published on Wednesday, require a “special majority” in an expanded bench of justices to strike down laws and/or decisions deemed to contradict Israel’s quasi-constitutional Basic Laws. And even were this to happen, the coalition majority could simply re-legislate such laws via a so-called “override clause.” Re-legislation would be barred only if all 15 High Court justices ruled unanimously to strike down a law — a tall order, made impossibly remote by another of Levin’s proposals that would give the coalition a majority on the panel that selects the justices in the first place.
Ostensibly magnanimous in his declared bid to “restore” Israeli democracy, Levin is promising that his vision will be fully debated in the Knesset’s Constitution, Law and Justice Committee and in the plenum, that “all views will be heard,” and that the legislative process will be conducted “with patience.” But Levin has also said he hopes the legislation will reflect his proposals as closely as possible and that “nothing will deter me.” And an official in the office of MK Simcha Rothman, the far-right Religious Zionism MK who chairs that committee, told the Times of Israel that the government intends to get the proposals passed into law by the end of March.
If — or rather, it would seem, when — the court is denied the capacity to protect Israelis from abuse by its hardline government, we know what we can expect:
The coalition agreements between Likud and its far-right and ultra-Orthodox partners provide, for instance, for legislation to allow discrimination on the grounds of religious belief; a widened exclusion from military and any other national service for the ultra-Orthodox community; state funding for ultra-Orthodox schools with limited oversight and without the teaching of a core curriculum; the legalizing of West Bank settlements hitherto acknowledged as illegal because they are built on private Palestinian land; restricting the provisions of the Law of Return; and changes to the criminal code that, applied retroactively, would ease Netanyahu’s legal woes — all areas where the High Court has previously weighed in and/or would be expected to if it were able.
Saturday night’s test
As the full crushing weight of what Levin and the Netanyahu-led coalition intend to impose has registered with at least part of the electorate, calls for mass protests and demonstrations to resist it are rising — and so too the expressions of intolerance by members of the coalition for such resistance.
On Monday, Opposition Leader Yair Lapid vowed to wage “a war over our home,” while Benny Gantz, the defense minister until two weeks ago, warned that the judicial overhaul could lead to “civil war” and urged the public to lawfully take to the streets, declaring: “It’s time to go out en masse and demonstrate; it’s time to make the country tremble.”
On Tuesday afternoon, in response, Otzma Yehudit MK Zvika Fogel accused them and two other outspoken critics, former MKs Yair Golan and Moshe Ya’alon, of “treason against the state” and called for their arrests. “These four are now talking about war… If they were calling for protests, I’d give them every right to protest. But they’re talking in terms of me being an enemy.”
Only several hours later did Netanyahu slap Fogel down — unequivocally, but with a twist. His statement began, “In a democratic country, opposition chiefs aren’t arrested…” but continued “… just like government ministers aren’t called Nazis, Jewish governments aren’t called the Third Reich and civil disobedience among the public isn’t encouraged.” The Nazi-related reference was to placards likening Levin and the Netanyahu government to the Nazis that were brandished at an anti-government demonstration on Saturday in Tel Aviv.
Fogel’s party leader, National Security Minister Itamar Ben Gvir, told Army Radio on Wednesday morning that the police force he oversees will not be arresting political opponents, but added that he “absolutely understands” how Fogel feels, “when he wakes up every morning to personal threats against him and against his state, against all of our state.”
Ben Gvir is calling for a toughened police response to demonstrations, including arrests of those who “block roads and get wild” and, complaining that ultra-Orthodox anti-draft demonstrators in Jerusalem get rougher treatment by police than the Tel Aviv protesters, equality in the use of water cannons.
Netanyahu, on Wednesday night, appeared to back such toughened policing of protests, declaring that in a properly functioning democracy, “there can be no violence — no license for violence, no license to block roads or to carry out other actions that harm the citizens.”
A much larger demonstration than last week’s is planned for Tel Aviv on Saturday night.
In the current fevered political climate, with Israeli democracy being challenged as rarely if ever before, it constitutes something of a test (including for the organizers, who will want to attract the broadest participation, and not deter concerned citizens who are alienated by Palestinian flags and appalled by Nazi placards).
Netanyahu, who promised his hands would be on the wheel of his hard-right government, has unleashed Levin, watched opposition concerns predictably mount, heard a far-right member of his coalition accuse opposition leaders of treason and mildly slapped him down.
As Israel, and indeed Netanyahu, knows only too well, however, when the divides are particularly acute, not everybody knows when to stop.
This article is an excellent example of bias. A) The Israeli public had over 90% confidence in the Israeli Supreme Court before Barak began to involve the court in politics and began to declare “illegal” so many acts of the Knesset and the government. Today, the confidene in the court is under 50% > Justice should be seen, and the Israeli supreme court is perceived to be totally against the Jewsh State of Israel ,for internationalisation and – in effect – turning Israel into another secular state with no particular cultural identity. The Israeli public support the changes. The renowned jurist, Richard Epstein supports the proposed changes. [https://en.wikipedia.org/wiki/Richard_Epstein].
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