Judicial law battle has its day in court
Bibi’s in a bind.
ilemma number one: His fractious coalition will be hard-pressed to pass additional judicial reforms in the face of mass domestic protests and a tidal wave of international coercion.
Dilemma number two: We will know very soon if the controversial initial steps the government has already enacted will pass muster with the very High Court whose wings the coalition is trying to clip.
This Thursday, a three-member High Court panel was set to hear appeals to an amendment the coalition tacked onto a Basic Law in March barring the attorney general from declaring a prime minister unfit for office. The amendment states that only the Knesset has the authority to suspend a prime minister, and even then, only if he is physically incapacitated.
In a separate but related challenge, on September 7 the High Court will hear a petition to force Justice Minister Yariv Levin to convene the judicial selection panel that will appoint two new High Court justices to replace two members reaching the mandatory retirement age of 70 in October. Levin is wielding his authority to avoid convening the selection panel until he can force a change in its composition to boost the chances of appointing conservative judges.
Then, in mid-September, just as Netanyahu jets to America for the UN General Assembly, and perhaps a White House audience with the “big man,” the High Court will hear appeals asking for repeal of the amendment to the Basic Law the Knesset passed last Monday that forbids justices from overturning cabinet-level decisions and appointments that they find to be “unreasonable.”
If all that weren’t enough, at approximately the same time, the Court will hear petitions to impeach Netanyahu for allegedly breaching an agreement he signed with the Court in 2020 that enabled him to continue serving as prime minister for the duration of his criminal trials. As part of that deal, Bibi agreed not to make senior appointments to the judiciary and law enforcement bodies that could be viewed as conflicts of interest if those appointees could help him get off the hook.
The stakes are high for Israeli democracy and for reform to a warped system that Ron Dermer aptly described during a CNN interview as “all checks and no balance.”
The High Court has overturned approximately 20 laws passed in the Knesset but has yet to overturn a Basic Law, which was supposed to form the backbone of a constitution that Israel never crafted.
But there’s always a first time, and here’s where Attorney General Gali Baharav-Miara enters the picture. In every other Western-style democracy, the attorney general advises the government and defends it in court. In Israel, however, Baharav-Miara as AG opposes the government’s position. She contends the Knesset abused its lawmaking authority by passing an amendment to a Basic Law that benefits only one individual — Bibi — and she rejects being deprived of her prerogative to discipline Netanyahu for what she views as his violations of the 2020 deal for directing judicial reforms behind the scenes.
Having said that, the AG has indicated that she opposes an actual suspension of Netanyahu when that case comes up. While it seems as if she’s contradicting herself, hers is a clever and nuanced way of telling the High Court that it’s okay to reverse a Basic Law without singlehandedly recommending the Court overturn the results of the last election, an undemocratic move that would unleash the wrath of 2.3 million people who voted for the parties that make up the current coalition.
High Court President Esther Hayut named herself and two of the most liberal justices on the bench to hear this particular case, raising the odds that the court might be considering setting a precedent to exercise judicial review of Basic Laws.
On the other hand, President Hayut appointed a different three-justice panel that includes two conservative judges, to preside over the previously mentioned appeal that would force Justice Minister Levin to convene the judicial selection panel against his will. It could signal her efforts to appear balanced, or she might be so certain that Levin doesn’t have a legal leg to stand on that even conservative judges will rule against him.
As of press time, no judges have been empaneled to hear the cases calling for the actual suspension of the prime minister, or the appeal to restore justices’ right to use the reasonableness clause to overturn cabinet-level decisions and appointments.
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Battle of Wills
In the meantime, Israel’s democracy is foundering into unchartered territory. If we’re looking to assign blame, there’s plenty to dish out.
Certain oligarchs, high-tech moguls, and financial market leaders have employed scare tactics on economically unsophisticated citizens, exaggerating the impact of judicial reforms, when in reality Israel’s economic slowdown has many long-term underlying causes and is also part of a global retrenchment.
Many IDF veterans who have served the nation with honor may refuse to show up for reserve duty. Such a move could jeopardize the security of the Jews in Israel and embolden our enemies.
Doctors who canceled appointments and elective surgery during their one-day strike last week put their patients at risk. The doctors who threaten to relocate their medical practices to foreign countries, even though judicial reforms will have zero impact on the provision of medical services or on their compensation, are undermining the health system.
Domestic and international critics who insist that reforms be passed with a broad consensus are politically naïve. Why on earth would the opposition compromise when they can leverage the unrest to unseat Netanyahu and his 32 religious coalition partners, who scare the daylights out of them?
Former prime ministers and heads of the intelligence services who have gone public with their alarmism, claiming Bibi is turning Israel into a dictatorship, deserve perhaps the most scathing condemnation of all, as they should know better, and much of their rhetoric stems from personal animosity toward Bibi.
Finally, the government itself deserves a whopping share of the blame for vastly underrating the opposition and for its failure to organize an equally powerful array of military and economic experts and former public officials to explain to the average Israeli citizen how he would benefit from the reforms and how an all-powerful judiciary works to his detriment.
At this stage, further reforms are on hold. Last Friday’s announcement by seven Likud members warning coalition heads not to count on their votes will at the very least slow the process.
Perhaps this pause will take some of the pressure off the justices to strike back. If they don’t feel their backs are to the wall, they may become more wary of striking down amendments to Basic Laws, a move that could lead to backlash in the Knesset and efforts to promote even more draconian laws to curb judicial powers. Legal experts interviewed in the Hebrew-language media suggest the Court could take nuanced approaches, such as sending the Basic Law amendments back to the Knesset Constitution, Law, and Justice Committee to tinker with wording; or rule that the amendments are legal, but can only take effect after the next election; or uphold the amendments, while reserving the right to review individual cases that stem from the new laws.
Something has to give. Things can’t continue like they are, with weekly street demonstrations and political recriminations. Tag the protestors with any label you like — leftists, or anarchists, or say they’ve been brainwashed — but you can’t change or deny reality. The leaders of the anti-government movement have a variety of agendas, but many of the rank-and-file citizens who fill the streets have palpable fears that can be reckoned with and contained.
As for the hope that the intense heat wave with three consecutive weeks of temperatures north of 90 degrees would cool people’s ardor for demonstrating outdoors, or that the crowds would dissipate during vacation season, it’s becoming obvious this was all wishful thinking.
(Originally featured in Mishpacha, Issue 972)
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