If opposition leader Benjamin Netanyahu becomes prime minister and his policies are enacted, Israel will no longer be a liberal democracy and will instead become an “authoritarian democracy,” according to Justice Minister Gideon Sa’ar.
This, more than anything else, is what is at stake in the upcoming election, and Sa’ar, in an exclusive interview with The Jerusalem Post in his sprawling office at the Justice Ministry in Jerusalem, is seriously worried.
“This is a slipping of the State of Israel in a direction that certainly is less democratic, according to how we understand what a liberal democracy that has checks and balances is.”
Justice Minister Gideon Sa'ar
“This is a slipping of the State of Israel in a direction that certainly is less democratic, according to how we understand what a liberal democracy that has checks and balances is,” Sa’ar said.
What they are actually proposing, Sa’ar said, is to turn the election of judges into a decision that will need approval by the Knesset. This will lead to the identity of the High Court of Justice’s judges becoming part of coalition negotiations.
In addition, the Likud’s plan to enact legislation that will give the Knesset the power to overturn a High Court ruling with a regular majority (61 MKs) means that judicial decisions will also become part of the political back-and-forth. All the government will need is to have the coalition, which it controls, overturn any decision.
“When you take these two things – government control of the election of High Court judges, using its Knesset majority, and the ability to easily overturn any of the High Court’s rulings with the same majority – what is left of the checks and balances? What independence do the judges have? Almost nothing,” Sa’ar said.
With the executive branch, and essentially the prime minister, controlling the legislative and judiciary branches, what we would have is a shift from liberal to authoritarian democracy – and it may not stop there, Sa’ar warned.
Splitting the attorney-general’s powers
Not that Sa’ar is against all changes to the legal establishment. Every justice minister hopes or expects to appoint new Supreme Court justices. But Sa’ar was clear that he was going to make a bigger and more unique mark on history by splitting the role and powers of the attorney-general into two separate prosecutorial and legal advice positions.
In fairness, he got closer to this goal than his predecessors Daniel Friedmann and Ayelet Shaked, who wanted to do the same. But he still fell short despite a full year in office and it being one of his main conditions for supporting the coalition. Why?
Sa’ar said that the Knesset was in the process of dissolving long before it would have been possible to carry out his plans regarding splitting the attorney-general’s authority. He seemed more annoyed that his proposed Basic Law for anchoring certain rights of defendants to due process at a constitutional level was stopped in between its first reading and second reading.
“Effectively the time we had was only one year. We did many things and accomplished many reforms,” he said.
“I had a plan from the first moment. I utilized the entire Justice Ministry office,” said Sa’ar. “I appointed around 170 judges, the attorney-general, the state attorney, the public defender and many other posts which needed to be filled.”
He was also very proud to change the selection process for Supreme Court justices to include “public hearings for the next justices. The next two justices will be appointed by the new procedure.” Yet, it is unclear whether there will be a government in place to start the nominations process in spring 2023, as would be standard.
Sa’ar complimented Supreme Court President Esther Hayut for supporting the public hearings idea, saying, “Hayut supports transparency. She also implemented an old decision of the judiciary to broadcast more court hearings live. When you see something, it is harder to believe in conspiracies.”
Pressed further that maybe he would have failed to change the attorney-general’s role even if he had more time, due to opposition from the coalition’s left-wing parties, he responded, “No one knew what bill I would have proposed – the model would have gotten consensus. I estimate that there was a majority in favor. Yamina, Yisrael Beytenu and Yesh Atid were obligated to support it.
“I would have first built a majority for it within the government and then within the Knesset,” said Sa’ar.
Then he asserted that in reality he only had two months to seriously work on the issue, because he could only really advance it once Gali Baharav-Miara was appointed attorney-general in February, and by April the government had lost its majority, even if it stayed on life support until July.
What about the idea of going ahead and splitting the attorney-general’s job de facto, without legislation, simply by arranging it with Baharav-Miara and State Attorney Amit Aisman?
He said that there was “no [legal] way to split the powers of the attorney-general without legislation,” since a key component would be to give away the power to probe and prosecute the prime minister and other ministers, something anchored in Knesset law.
Regarding Baharav-Miara, he said, “She knew my plan. She wasn’t against it,” despite some media reports saying that she was.
Swinging the judiciary past the tipping point to the Right – has he done it or is there more to do?
Sa’ar was asked if his four judicial appointments, in which three liberals and a conservative were replaced by two conservative and two liberals, had finally swung the judiciary beyond the tipping point to be a majority conservative court, following appointments by Shaked in that vein.
“It is an incremental process. It started with the 2008 law that I got passed changing the selection method to requiring a majority of seven out of nine committee members. This requirement created a necessity to compromise” between the judicial and political camps on the committee, he responded.
Continuing, he stated, “There was a homogeneous worldview. Fourteen years later, the court is heterogeneous. It is not binary – there are decisions where justices switch sides,” but “yes, everyone sees today that there is a conservative camp within the court.”
He cited the precedent-setting 4-3 ruling of the Supreme Court allowing the Mitzpe Kramim outpost to remain despite a prior order to evacuate it as an example of a decision that might have gone the other way, back when the court was more left-leaning. “Mitzpe Kramim was a very important ruling. There was a 4-3 majority using the market regulation rule for settlements. There were attacks on it by the Left, but this was expected.”
Forming coalitions
Returning to the political-legal mix, Sa’ar said that antidemocratic tendencies mean that Netanyahu is simply not a partner – not as an alternate prime minister, not as a member of the government (which in any case Netanyahu cannot become, since he is under criminal proceedings), and not in any other form.
“We do not rule out participation with the Likud. But I think that it would be natural to go to him and ask him, ‘If you are truly an Israeli patriot, and you see that the system is stuck, and you understand that a nationalist, stable, broad unity government could form easily without you, why are you dragging the country to a fifth election?”
Whoever did try to work with Netanyahu came away with burned, said Sa’ar, adding that enough is enough. Instead of blaming Sa’ar for ruling out Netanyahu, Israel’s citizens should be asking Netanyahu why he is ruling out the State of Israel, he said.
“The path to a stable government runs through the question of who can be a uniter.” The current situation, in soccer terms, is of two teams hunkering down on each of their own half of the field, he said. “Our move in [the] National Unity [Party] was to break the blocs and bridge the blocs, and I think that this is a point of strength. We want to play on the whole field,” he said. Who, then, would Sa’ar’s party form a government with?
The answer, as National Unity brazenly admitted in a campaign video on Wednesday, is the haredi parties.
But with Netanyahu giving in to the haredi parties’ demands earlier this month and agreeing to increase funding for the haredi education systems without insisting on adequate “core studies” that will help get them jobs, won’t National Unity do the same?
Sa’ar’s record shows that he will not make similar concessions, he argues. In 2010, as education minister, he cut NIS 30 million in funding from haredi school systems that were not meeting the standards of core studies to which they had committed. The haredi parties were in the coalition then, and they criticized him harshly.
“We intend to uphold these principles in the future. I don’t intend to force them [to study core studies], and you cannot force them [to do so]. But I do intend to encourage them to teach core studies, and I intend to maintain the link between the breadth of core studies and the funding that they receive from the government,” Sa’ar stressed.
The haredim are a possible partner, but not the Joint List, Sa’ar said, even without the breakoff of the more extreme Balad faction from the other two, Hadash and Ta’al.
“The Joint List is an extreme party, with anti-Israeli positions in a number of senses, and a government that will rely on it will not be able to fulfill its mission. This may harm very fundamental things,” he said.
“Our intention, in general, is to form a broad, national party that will not rely on the extremes. I believe that that is needed in Israel in order to bring stability. A government that relies on the Joint List will be anything but stable,” Sa’ar added.
Israeli-Arab sector violence
One of Sa’ar’s missions in office has been to try to combat the wave of violence and murders within the Israeli-Arab sector, violence that even took the life of one of his advisers.
With 75% of crimes in that sector going unsolved, he said, “We still have not succeeded to change the overarching trend. There have been many steps; even the laws which I brought to the Knesset were stopped. The law for police searches without a warrant (in specified organized crime circumstances) passed one reading. Then it was stopped.
“We saw the central problem was not punishment, but that solving crimes is extremely difficult. Most murderers are not caught or punished. So how do we solve more crimes? We learned about the process,” he said.
Moreover, he stated, “There are many cameras recording public and private areas. They catch everything happening in a generally public area. But before the police get to them, the criminals steal or destroy the recordings, or even the recording officials destroy them because they do not want to be called as witnesses,” he said, noting that these phenomena stop many murder cases.
His no-warrants search law would have been in effect on only a temporary, emergency basis for 18 months, and only where there was a serious felony and a strong concern that evidence was otherwise likely to be destroyed.
“The opposition was opposed, and the Joint List was opposed, but Ra’am supported it, and all the other left-wing parties supported it, once it was limited to 18 months as an emergency law,” he said.
Furthermore, he said, “I tried to pass the law with [former justice minister Avi] Nissenkorn. He was against it.”
Before Sa’ar’s term, “Arab sector criminals with illegal weapons were getting mere community service. Now we have a situation where not just those who illegally use weapons, but also those who possess them, get significant prison time. I see the courts adopting this.”
Pressed about whether even a few months or years in prison would affect hardened members of a criminal organization, he said that it would for sure affect a large number of Arab adolescents and teenagers who were acting alone and not as part of a larger group or pattern.
He said that the broader fear of assisting law enforcement in the Arab sector also must be changed.
Sa’ar also talked about fighting Arab criminal organizations economically by hitting them with tax and money laundering crimes. “We had delayed court cases, so even convictions were not achieving deterrence.”
He said there has also been a sociological shift where “before, Arab villages didn’t want police in their village. Now, Arabs want the state to go in to give them personal security.
“Internal security [with a focus on the Arab sector] is not less worrying for me than Iran and Hezbollah,” said Sa’ar.
The Palestinians
Israeli-Arabs aside, there seems to be a discrepancy in the party’s stance regarding a future peace deal with the Palestinians. National Unity’s No. 3, former chief of staff Gadi Eisenkot, said in recent weeks that he supports disengagement from the Palestinians, and that the Oslo Accords, the retreat from Hebron in the 1990s, and the Disengagement from the Gaza Strip in 2005 were steps in the right direction. And Gantz, in an interview with Yediot Aharonot last Friday, expressed his support for former US president Donald Trump’s “Deal of the Century,” which included giving the Palestinians 70% of the West Bank and most of Area C.
“We have a broad common denominator,” Sa’ar said of Eisenkot, “but we don’t agree about everything. There are nuances. Gantz expressed his support in formalizing the status of the young settlements, where it is allowed by law, so in general I believe there is broad agreement,” he said.
“We support settlement where it is legal. This is an important distinction, because today there are extremists that have different approaches,” he said.
Sa’ar stressed that the divisive political discourse always seeks out the nuances and small instances where he and his partners disagree. But in reality Sa’ar’s merger with Gantz came after six months of negotiations, whose first step was to ensure that the sides’ policies are compatible.
Regarding Trump’s plan, Sa’ar admitted that he had more reservations than Gantz, such as opposing the passing of land from the Negev to the Palestinians. Sa’ar still supported the plan for a number of reasons, including the fact that it didn’t “obsess” about evacuating Jewish settlements, which Sa’ar claimed was “anti-peace.”
Sa’ar stressed that he held the basic view of former prime minister Menachem Begin, who believed that the right to settle the West Bank stemmed from the right to national security, since settlement and security are linked.
“Benny Gantz also saw the plan as a starting point, and said that there is no viability at this point for a permanent agreement to end the conflict, and therefore this whole discussion is theoretical and futile. Therefore, both I and Benny Gantz support ‘shrinking the conflict’ instead of solving it.”
However, Sa’ar admitted that “it could be that if we were in a position to talk about a permanent agreement, there would be differences between Gantz and I.”