Lily Galili
Middle East Eye / January 10, 2023
Under the new plan, checks and balances will be eroded and judges will be picked by Netanyahu’s coalition.
The new plan for Israel’s judicial system has been called all sorts of names.
Aharon Barak, the revered former president of the Supreme Court who often avoids melodramatic statements, compared it to “the beginning of the end of the third Temple”, a prophetic expression to describe the extinction of Israel.
“Regime change” and “political coup” are some of the labels given to it by its opponents. Yariv Levin, the justice minister behind the upheaval, called it simply “reforms”.
Whatever definition you choose, Levin’s plan – if implemented – will not just overhaul the legal system and weaken the Supreme Court, but will change the very core of the regime in Israel.
The country that used to pride itself on being “the only democracy in the Middle East” – to its Jewish Israeli citizens at least – is about to become an “authoritative democracy”, something similar to some post-Soviet democracies in eastern Europe.
This is the best-case scenario, of course. The worst is that it will be a “dictatorship of a casual parliamentary majority”, explains Michael Ben-Yair, the former attorney general of Israel.
Liberties will be limited and “subordinated” to the government, he tells Middle East Eye – a “government of half the people, run by stakeholders of half the people, for half of the people – with no mechanism to offer protection to individuals and minorities”.
The civil rights of all Israelis – Palestinian citizens, Jews, women, members of the LGBTQ+ community and asylum seekers – are doomed to be the main victims of this constitutional revolution.
It will be particularly disastrous under the current government of openly racist ministers and MPs, some of whom have been on the wrong side of the law themselves.
The best example of this is Prime Minister Benjamin Netanyahu, who is facing charges of corruption that he denies.
His trial is ongoing parallel to this judicial revolution, supposedly planned single-handedly by his ally Levin.
In the plan, many components will erode the system of checks and balances and the independence of the judiciary, effectively concreting all powers with politicians.
One example is the change proposed to the committee which appoints judges. Currently, the governing coalition has three seats in the nine-member committee. The new plan will grant them five, effectively giving the government a clear majority.
Netanyahu’s coalition will practically appoint its own judges. That might be the real raison d’etre behind the so-called “reforms”. Good for Netanyahu, dangerous for Israel.
What the plan entails
Levin came up with the plan one week after his official appointment as justice minister.
It has become the norm for this new government to work very fast, dedicating itself to erasing all traces of its predecessor in what feels like an orchestrated vendetta more so than the implementation of a new policy.
Each minister in the government, the first ever to include far-right and ultra-Orthodox parties, is on their own mission.
In Levin’s case, the timing of his proposal revealed on 4 January, provides crucial insight into the likely motives behind the speedy reforms.
The announcement was made on the eve of the Supreme Court hearing petitions against the legality of the appointment of Shas party head, Aryeh Deri, as health and interior minister.
As the most experienced minister in the government, Netanyahu needs Deri close to him during his term.
Just a year ago, Deri, who will become minister of finance in two years according to the terms of his coalition agreement, was found guilty of tax offences and received a suspended sentence.
The sword of Damocles hanging over the Supreme Court on the eve of the hearing was a premeditated move. Merav Michaeli, leader of the Labor party, compared it to “mafia-like” behaviour.
The components of the plan reveal even more evidence of the likely motive.
In addition to changing the judges’ selection committee, the plan proposes measures that will seriously impede the Supreme Court’s power to curb parliament.
Currently, the Supreme Court can disqualify government legislation if they contradict Israel’s 13 Basic Laws, particularly the Human Dignity and Liberty Basic Law. Israel’s Basic Laws are intended to be part of the future constitution, which does not exist yet.
Levin’s plan, however, proposes an “override clause”, which will allow parliament members to reenact a law disqualified by the Supreme Court with a majority of 61 MPs (out of 120).
The plan also wants to allow ministers to appoint their own legal advisers, rather than appointees who report to the attorney general.
Levin will now have to turn the “reform” plan into legislation and present it to a vote in parliament expected later this month.
A slippery slope
If the plan is implemented in its current form, Israel will move to a nation without an independent judiciary, and from a government that must justify its actions to a regime that can act arbitrarily.
This is not governance, the buzzword adopted by the new administration and marketed to the Israeli public as the answer to their malaise; this is a real and imminent danger to the human rights of all living in Israel, as well as those in the occupied Palestinian territories who have already been suffering under decades of human rights violations.
Yossi Beilin, former minister of justice and head of the Meretz party, is particularly concerned about the “override clause”.
Contrary to some claims, the clause was applied only 22 times over the last 20 years, mostly disqualifying sections of the law that overtly contradicted principles of equality and human rights.
“It’s a new chapter in the history of Israel,” Beilin told MEE. “Looking at the whole package of the planned reforms, Israel will be left with just a facade of democracy.”
Beilin warns that it will be difficult to roll back those reforms if they go ahead, as it will be convenient to all future governments to have this power.
“My political life would have been much easier if I could appoint my ministries’ loyal legal advisers in political positions as suggested now by Levin instead of the professional positions accountable to the attorney general I had to deal with,” Beilin said.
Drawing comparisons to Poland and Hungary where media freedom has been weakened in recent years, the former minister fears news outlets will be targeted next in Israel.
“We see the beginning of it with the appointment of the new minister of communication, Shlomo Karhi, who is already threatening to close down the Israeli Public Broadcasting Corporation. A slippery slope? It’s a precipice.”
Undermining of the court
The vilification of the Supreme Court within Israel has been happening for some time.
In 2012 interviews dedicated to the judicial system, Netanyahu presented himself as the saviour of the system and the Supreme Court in particular.
That was his legacy, he said, something he was raised on and inherited from his predecessor, Likud party founder and former PM Menachem Begin.
But the reality was different. Under his leadership, the judiciary had come under repeated attacks by right-wing and far-right figures.
Netanyahu’s tone changed in 2016 after he became the subject of investigation and later indictment on charges of suspected bribery, fraud and breach of trust.
Netanyahu denies any wrongdoing as the trial, which began in 2020, continues with no end in sight.
Netanyahu’s once cherished legal system has now become his arch-enemy, the judges labelled as leftists on a mission to bring down not only him but all right-wingers. “Evil they” against “us”.
The anti-court campaign has been exceptionally successful, even among individuals and sectors sometimes benefiting from rulings of the Supreme Court.
The court has been perceived as an elitist self-serving body, detached from the people and their needs. A 2021 survey found that only 41 percent of the population trusted the Supreme Court, declining from 52 percent in a survey taken months earlier.
Who can stop this ?
It is easy to carry out such an assault on the intricacies of the law that so few understand. It is even easier when there is one person to put blame on. That person is Aharon Barak, held responsible for his “judicial activism” approach as head of the Supreme Court between 1995 to 2006.
On social media, he is now often nicknamed “the Big Satan”; his many disciples are the “small Satan”, the same terminology used by some Iranians to describe the USA and Israel.
Barak is very much aware of the blame bestowed upon him and of the fact that Levin’s plan is perceived as the correction of reforms he introduced.
In a TV program aired on Channel 11 on Saturday, Levin blamed Barak for having “brought a huge disaster upon us”.
In the same program, Barak said: “If I knew my execution would put an end to this upheaval, I’d be ready to face a firing squad.”
Figuratively speaking, that is exactly what is happening to him and the whole system.
And it cannot just remain a domestic issue. Over decades of occupation, Israel brushed off any intervention of international courts and institutions, claiming that the Israeli Supreme Court, recognized in international legal circles, has all the moral authority to distinguish between legal and illegal, right and wrong.
This cannot be argued about a castrated, humiliated and powerless court that Israel will have if Levin gets his way.
But what is the international arena compared to Netanyahu’s interests and thirst for unlimited power over the most racist, ultranationalist and parochial government in the history of Israel?
“No court can save the people of Israel if they don’t want to save themselves,” is the simple answer, as Barak put it.
Lily Galili is a senior Israeli journalist and lecturer focusing on all aspects of Israeli society and immigration to Israel
