Will incoming gov't ruin checks and balances in Israel's legal system?

LEGAL AFFAIRS: What would the court-override movement mean for the legal establishment?

 THE JUSTICE Ministry offices in Jerusalem. (photo credit: YOSSI ZAMIR/FLASH90)
THE JUSTICE Ministry offices in Jerusalem.
(photo credit: YOSSI ZAMIR/FLASH90)

There are differing reports about how the incoming government intends to transform the legal establishment, but all of the intended transformations would leave the country looking very different than it does today.

From the legal establishment’s perspective, its full-on nightmare would be the new government making it easy and routine to override the High Court of Justice, and to remove obstacles from new coalition members wielding power who might be prevented from doing so by existing laws regarding public corruption.

Around 130 senior legal officials put out a public warning this week about the incoming government’s trajectory toward that goal.

In the worst case, the incoming government would pass a stand-alone Basic Law allowing the Knesset to overturn any High Court ruling by a mere 61-vote or even smaller majority as soon as next week or the coming weeks.

This would essentially mean that any governing coalition could overrule the High Court on any issue without a single supporting vote from the opposition.

 YA’ACOV LITZMAN addresses the Knesset, earlier this year. In 2015, the High Court ruled that Litzman’s position as a deputy minister with the powers of a minister was unconstitutional (credit: OLIVIER FITOUSSI/FLASH90) YA’ACOV LITZMAN addresses the Knesset, earlier this year. In 2015, the High Court ruled that Litzman’s position as a deputy minister with the powers of a minister was unconstitutional (credit: OLIVIER FITOUSSI/FLASH90)

Put differently, legal experts worry that this would remove any checks and balances from the majority population, sometimes falling into populist policies which could oppress minorities, whether they be LGBT persons, Arabs, Druze, non-Orthodox Jews or others.

Struggles for the court system

Religious Zionist Party (RZP) MK Itamar Ben-Gvir has called for policies that could be seen as going against Israeli-Arabs and Palestinian human rights, and he and some of the haredi parties have called for actions that could clash with non-Orthodox movements’ rights.

According to the reports, almost immediately after passing the law to override the Hight Court, the new government would pass a law permitting someone convicted of a crime who was given only a suspended sentence and not an immediate jail sentence – such as Shas Party leader Arye Deri – to serve as a minister.

According to existing law, Deri might need to first appeal to the Central Elections Commission to serve as a minister, and at some point, his desire to serve as a minister could trigger a court ruling that his conviction for tax crimes last year carried a finding of moral turpitude. This would block him from serving as a minister.

In fact, The Jerusalem Post has learned from top legal sources that if the issue came to the Jerusalem Magistrate’s Court, which convicted him, he would almost certainly be blocked from becoming a minister.

If the new coalition merely passed a law allowing Deri to serve as a minister despite a finding of moral turpitude, contradicting around 30 years of judicial precedent, under existing law the High Court would almost certainly veto the law.

This is why the coalition would first pass a new Basic Law giving it the ability to override the High Court.

There has been speculation that the coalition might also pass a law to cancel or pause the trial of incoming prime minister Benjamin Netanyahu.

Such a law would be nearly unprecedented in Western democracies – canceling or pausing a trial midstream.

If the coalition did so, it would do so arguing that a sitting prime minister should not be distracted from managing the country, noting that some countries do not even allow cases to be filed against a sitting prime minister (those countries allow only the legislative or executive branches to impeach a prime minister). Some members of the coalition also view the court case as politicized.

But almost all legal experts – even those who have criticism of the prosecution – would view such a move as the ultimate abuse of power and ending any sense that there are limits on what a prime minister can do in terms of public corruption. Note, some of these experts might even believe Netanyahu will be acquitted, but they would say the court must be allowed to determine the outcome.

Another technique that could muck up the works of the Netanyahu trial would be RZP chief Bezalel Smotrich’s recommendation to eliminate the crime of breach of public trust. This crime has been controversial for some time, as critics claim that different courts handle it in completely different and unequal ways. But in this case, few would doubt that the crime was being repealed to help Netanyahu avoid being convicted of crimes at his trial.

At this point, maybe the least controversial part of the new coalition’s plan could be splitting the powers of the attorney-general into two separate roles: a chief prosecutor and a chief legal adviser.

This is the least controversial because even the past coalition was considering such a move, led by outgoing Justice Minister Gideon Sa’ar.

Sa’ar has even said that he would support the coalition on this specific move, if it is not made with ulterior motives. He warned that if this move were done in order to use a new chief prosecutor to interfere with prosecuting Netanyahu, or if the government made other moves that would politicize the state prosecution, he would stridently oppose them.

Incidentally, Sa’ar and even some top current and former judicial officials would support creating a Knesset veto of the High Court, if it was part of establishing some set of constitutional limits on the Knesset that virtually all Western democracies have by virtue of a constitution.

They would also likely support a Knesset override if it required opposition votes – such as setting a supermajority requirement of 70 or 80 votes (many Western countries have supermajority requirements to override the judiciary).

 The Knesset building, home of Israel's legislature, in Jerusalem, on November 14, 2022 (Illustrative). (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST) The Knesset building, home of Israel's legislature, in Jerusalem, on November 14, 2022 (Illustrative). (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

Another nightmare scenario from legal experts’ perspectives would be if Ben-Gvir were allowed to remove restraints on the IDF’s open-fire rules.

That, along with the Knesset bulldozing over judicial branch vetoes could mortally harm the extent to which the International Criminal Court and even some Israeli allies continue to view Israel’s judicial establishment as independent and trustworthy in defending human rights.

There are also semi-nightmare scenarios from legal experts.

The truth is many officials do not think that Netanyahu will rush to cancel or postpone his trial, not least because he believes he is winning and because any verdict could easily be 12-18 months away.

Further, some leaks indicate that the Likud is resisting attempts to immediately pass a full-fledged Knesset veto of the High Court until the spring, near the end of the current Knesset term.

If the move is delayed, the leaks indicated, the Likud would be in favor of the change, but would want to make it comprehensively taking into account a variety of separation of powers issues, so as not be seen as acting in a partisan manner.

Such a delay would also raise the prospects that the Likud might be hoping to drag out the process and then swap the RZP for Benny Gantz’s National Unity Party in order to get out of being seen as a radical government by much of the Western world.

In this scenario, Netanyahu might need to find a different way to get Deri a ministerial role, such as only overriding the High Court on that specific issue. Or possibly, he might try negotiating with High Court President Esther Hayut to find some way for the court to avoid weighing in, so that he could keep the judicial “bullet” in the “chamber.”

This might not be as bad in legal experts’ eyes as a broad crushing of the judiciary’s ability to restrain the other branches from abuse of power and populist tendencies.

But even a narrower process whose sole goal would be to get Deri a ministerial role would be seen by legal experts as setting a new low and precedent for politicians to use their power to obtain immunity from corruption charges and consequences.

What would prevent any future politician with enough power in a coalition from demanding similar treatment? What deterrence would there be against ministers abusing their power?

Whether one believes Netanyahu is innocent or guilty, the fact is that Deri agreed to a deal in which he confessed to committing tax crimes – this after he spent more than two years in jail about 20 years ago on a separate bribery conviction.

Also, there have been politicians on both the Right and the Left who everyone agrees deserved to be convicted and sent to jail.

 PRIME MINISTER Yair Lapid convenes a meeting of his coalition partners in the Knesset on Tuesday.  (credit: ASSI EFRATI/GPO) PRIME MINISTER Yair Lapid convenes a meeting of his coalition partners in the Knesset on Tuesday. (credit: ASSI EFRATI/GPO)

Legal experts worry that fighting public corruption would disappear, the way it does in authoritarian democracies.

Of course, these are only some of the possible scenarios and mostly reflect the view of the legal establishment, an establishment that parts of the country view as elitist and out of touch.

The coming weeks and months will reveal how far the new government is willing to go and how nightmarish an impact the new reforms will have on the rule of law and human rights.