Not a coup; a democratic debate

We all agree on the necessity of judicial review of the legislative and executive branches, but what creates a counterbalance to the court?

By Dror Eydar, ISRAEL HAYOM 11.8.23

Baron Munchausen pulls himself out of a mire by his own hair, Oskar Herrfurth | Photo: Public domain

1. Dear senators and members of Congress,

Last week you received an open letter sent by former Israeli diplomats presenting their view of the controversy currently raging in Israel over reform of the judicial system. As far as they are concerned, Israel’s democracy is in danger. This letter is part of a broader phenomenon in which serious people compete among themselves over who will prophesize the greatest catastrophe for the State of Israel due to what they call the “judicial coup.”

The letter paints a demonic picture of the camp represented by the current Coalition and headed by Benjamin Netanyahu, who is portrayed as a kind of anti-Christ. Incidentally, opponents of the changes fawn over the late prime minister Menachem Begin, but back in the day, he was portrayed in propaganda posters as being a Mussolini and as presenting a great danger to Israel – much in the way that Netanyahu is portrayed today, including in the letter sent by the Israeli diplomats. This is a simplistic view, which divides the world into sons of light and sons of darkness, and therefore sanctifies (almost) total war on the opposing side. This week, a jurist who once was nominated for the position of State Attorney said, “Prime Minister Netanyahu is an ‘Iranian spy'” – this is just one example of the mass psychosis whose waves have reached as far as the United States.

2. I do not believe that the truth is solely in my hands; indeed, I can only grasp its margins. Nevertheless, here are some of the arguments that until recently were also made by Opposition leaders.

In recent decades, the balance between the branches of government has been disrupted in favor of the judiciary, which took more and more powers without being authorized to do so. The process is connected to the demographic and social changes that have taken place in Israel since the first political upheaval in 1977. Beginning in the 1980s, when the political representatives of the camp that had, until then, ruled unchallenged, understood that this was not a glitch but a trend, they moved debates over questions of values from the political arena to the judgment of the Supreme Court.

The court did not shy away from engaging in politics; on the contrary, it went out of its way to be political. The court stretched the locus standi – the right to bring legal action before a court – enabling anyone who disagreed with the government’s policy to appeal against it, even if that policy did not directly affect the party bringing the action. In the 1990s, with the enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, a green light was given (in fact: was taken) to invalidate Knesset laws, even though no one had authorized the Supreme Court to do so. The citizens of Israel go to the polls to elect their representatives, but the final word goes to the Supreme Court sitting as the High Court of Justice. You will not be surprised if I say that rulings are often swayed by the social, class, and political affiliation of the Supreme Court judges, who for years cloned themselves in the Judicial Selection Committee, where they have veto power over the appointment of new judges.

3. Judging by the cries heard from the Holy Land, it seems that the narrowing of the reasonableness standard is tantamount to the destruction of the third Jewish commonwealth. But the grounds of reasonableness, as applied by the court, are an invention of former Supreme Court President, Justice Aharon Barak. Where an elected official has acted according to the law and there is no conflict of interest or any other legal issue – and therefore his decision cannot be invalidated – Barak, from the height of his understanding as a philosopher, adopted a position that states that the action is “unreasonable” in the eyes of the court. How is Barak’s judgment, or that of any other justice, better than that of an elected official? Will he be held accountable for the consequences of his decision? By the way, there are other grounds on which the legality of appointments can be examined, only they are anchored in law and reality and not in a judge’s worldview.

One argument is that the judicial reform – even after its wings have been clipped – lays the infrastructure for dictatorship. In practice, the opposite is true: the Supreme Court is about to decide whether to incapacitate Prime Minister Netanyahu due to his supposed “conflict of interest.” What we are seeing is the possibility that the democratic choice of the Israeli majority may be overruled by the court. What should we call the rule of unelected judges over elected officials? Plato’s “The Republic” comes to mind; in it, the ideal leader is the philosopher king. But democracy did not interest the great Greek philosopher, and it is not for nothing that some thinkers have seen Plato’s ideas as creating an opening for totalitarianism.<

4. The letter’s authors speak of a “judicial coup,” but if indeed a coup has taken place, it did so in the 1990s with the adoption of the Basic Laws – Human Dignity and Liberty and Freedom of Occupation. Barak, the Supreme Court President at the time called it a “constitutional revolution.” The laws were passed in the middle of the night, without the parliamentarians realizing that from now on the court would be able to invalidate their laws. In Knesset debates prior to the vote, whenever the possibility arose that these Basic Laws would be used to invalidate laws, the answer was that it would not happen. Dan Meridor, who was justice minister at the time and is now a staunch opponent of the government’s judicial reform, recently said that “the idiots didn’t understand.” But you understand! The constitutional revolution that fundamentally changed Israel’s constitutional structure was passed by a chance majority of about a quarter of the Knesset and the Basic Laws were elevated by Aharon Barak to the level of constitutional clauses! Imagine that the United States Constitution had been adopted in this way by the Constitutional Convention. Now, as the government tries to repair at least some of the damage, they are calling it a coup.

Last week, the Supreme Court held a hearing that distilled the argument into one statement by Justice Uzi Vogelman.  Where does the source of the court’s authority to invalidate Basic Laws come from, given that the court determines that the Basic Laws are constitutional chapters, and the court itself derives its power from Basic Law: The Judiciary? Can the court place itself above its source of authority? Vogelman explained: “The court is authorized to review Basic Laws on the basis of doctrines set forth in our rulings in an expanded panel.” Note, Vogelman states that the court derives this authority not by virtue of Basic Law: The Judiciary, not by virtue of the sovereign (the people) who give the Knesset its authority, not even from any divine source of authority (assuming that the Supreme Court justices are prophets) – but simply by virtue of the authority of Supreme Court rulings! In popular parlance, Vogelman said: It is so because we said it is.

Video: PM Netanyahu speaks about judicial reform / Credit: Twitter/Prime Minister’s Office

When I heard Vogelman’s statement, I recalled from my childhood the exploits of Baron Münchausen. In a story concocted by Rudolf Erich Raspe in the 18th century, the famous baron wishes to leap over a swamp but misses the other bank, and thus begins to sink along with his horse into the mud. Who will save them? The Baron himself: he grabs his own ponytail and pulls, until he manages to lift himself and his horse out of the mud and thus survives.

5. And we haven’t even talked about the economic threat through which they try to impose their will on political opinion (fortunately, Israel’s economy is strong), and the attempt by army reservists to impose their political opinion on the government, and in fact on the people’s choice by threatening that if we don’t accept, they will refuse to defend us. This is an attempt at a silent military coup. If only for that reason, it was crucial to pass the law and preserve democracy.

We all agree on the necessity of judicial review of the legislative and executive branches, but what creates a counterbalance to the court? Today, the court can rule as it pleases, cancel basic laws, and incapacitate a duly elected prime minister. Moreover, Israel was established as a Jewish and democratic state. There is no external mechanism that can prevent the Supreme Court from invalidating the Law of Return, on the grounds that it contradicts the Basic Law: Human Dignity and Liberty. Such a case would nullify the Zionist idea underlying the establishment of Israel. For now, we have to rely on the justices’ judgment not to do so. Is that enough?