As Israel turns 75, it has become an established, prosperous and fundamentally secure state, whose existence is no longer in doubt. Instead of preparing to celebrate these great achievements, we are in the battle of our lives over Israel’s future as a liberal democracy.
No, you have not heard it before. The threat is as never before.
Prime Minister Benjamin Netanyahu’s and Justice Minister Yariv Levin’s judicial “reforms” have nothing to do with some possibly warranted tweaks to a remarkable judiciary. They have everything to do with a ruthless determination to tame and subjugate the judiciary in order to save Netanyahu from likely jail time, and with the “minister of justice’s” deep animus toward the judicial system he is charged with nurturing. In so doing, they would fundamentally change the separation of powers in Israel and subvert its democracy.
The proposed changes include an “override clause,” which would enable the Knesset to override Supreme Court decisions with a bare-bones majority of 61 seats; a change to the judicial appointment process, which would conveniently allow politicians to choose their own judges; an end to the “reasonableness” criterion that the courts have long applied as a measure of governmental behavior; and a weakening of the legal gatekeepers – the attorney general and ministerial legal advisers.
The “reforms” have met with across-the-board condemnation by Israel’s legal establishment. Supreme Court President Esther Hayut branded them an attempt to “crush,” “dismember” and “subdue” Israel’s legal system, and are a “mortal blow to Israel’s democratic identity.” Former court president Aharon Barak stated that they constitute “the beginning of the end of the Third Temple… [and] a clear and present danger to Israeli democracy.”
Prime Minister Benjamin Netanyahu (credit: REUTERS)Former Supreme Court justice Menachem Mazuz warned that Israel will become “a state in which there is only one branch [of government] that controls both the Knesset and the legal system” and that this cannot be considered democracy. All 11 former attorneys-general and almost all state prosecutors jointly warned that Israel’s democracy faces “destruction.”
Israel may be ruled by majoritarian tyranny
ONE CAN dismiss them all as a self-serving and exalted judicial clique, determined to preserve its undeserved prerogatives. Alternatively, one can revere them as the authoritative and illustrious guardians of Israeli democracy and the rule of law. In a country in which many believe that the Torah and rabbis are the ultimate sources of authority, I vote for the latter approach.
The majoritarian argument – that the coalition reflects the will of the majority – is true and important up to a point. The coalition actually won by just a few thousand votes, which were then magnified by a vagary of the electoral system into a clear Knesset majority. More importantly, democracy is also about guaranteeing minority rights and a clear separation of powers.
When taken too far, majoritarianism becomes tyranny. In this case, the proposed changes will effectively leave Israel with only one branch of government. In parliamentary systems, the separation of powers between the executive and legislative branches is largely illusory, to begin with. Now, the executive will control the judicial branch, as well.
The very machinery of government is also under assault. This is not the first time that government ministries have been dismantled and eviscerated for coalition purposes, but never before with such utter contempt for the consequences.
Yeshiva degrees, not just academic ones, will now be accepted as the basis for civil service employment. Judges, police detectives and investigators, the professional core of the different ministries, will be promoted, or forced out, based on their political correctness.
We will all feel it in the quality of government services and long-term response to Israel’s needs. Prepare for many more hours in traffic and emergency rooms.
For the first time, the processes of governmental disembowelment have now reached the defense establishment, too. Three ministries will share responsibility for West Bank affairs. The Ministry of National Security, under Itamar Ben-Gvir, will be responsible for the Border Police, who have long been deployed in the West Bank and east Jerusalem for security purposes.
Finance Minister Bezalel Smotrich will be responsible for civil affairs in the West Bank, including settlement policy and daily Palestinian life. The IDF has repeatedly warned that it simply cannot report to three different ministers and will continue to answer solely to the defense minister. The stage has thus been set either for a coalition crisis, or one between the IDF and the government.
That is not the worst of it. Ben-Gvir and Smotrich are political arsonists, who achieved prominence by staging provocations intentionally designed to inflame their hardline base. Ben-Gvir has been convicted of eight crimes, including incitement of terrorism. Smotrich is even more dangerous. A true believer, he has even less regard for political and strategic exigencies. Both may soon stoke renewed strife with Israel’s Arab population and conflict with Hamas. This time, the fighting may not be limited to Gaza.
In its first few weeks in office, the new government has already racked up a number of important achievements. Ben-Gvir’s courageous visit to the Temple Mount, 13 breathless minutes during the early morning hours, when no one was around to witness history in the making, was reminiscent of the liberation of the Old City in 1967, indeed, of a Maccabean age.
What the visit may have lacked in substance, it made up for in practical consequence. A visit by Netanyahu to the United Arab Emirates was canceled and a possible breakthrough with the Saudis was postponed. Israel was condemned by virtually the entire international community, including the US.
Even before Ben-Gvir’s visit, the UN General Assembly had already voted to refer the occupation and de facto annexation of the West Bank to the International Criminal Court (ICC) for a ruling on their legality. With a new and now ultranationalist Likud at the helm, and Smotrich and Ben-Gvir pursuing massive settlement, Israel is providing fodder for the ICC and its opponents around the world.
In these circumstances, the judicial reforms become a self-goal. As long as the Supreme Court was perceived to provide effective judicial oversight, the ICC lacked jurisdiction to intervene in the West Bank and Gaza, but this may now change. Sanctions may be imposed and Israeli officials may be exposed to charges of war crimes when traveling abroad. Score one for the home team.
Only the willfully ignorant, or those blinded by the irrational hatred of an era in which fact is met with contempt and expertise derided, can fail to appreciate the dangers posed by Netanyahu’s and Levin’s “reforms.” Once implemented, Israel will become a kleptocracy, in which the never-ending array of public figures convicted, or under investigation, for corruption and malfeasance, become the norm. Under the guise of reform, Israel will become an illiberal democracy, akin to Turkey or Hungry.
All for the glory of a premier under multiple indictments for abuses of power.
The writer is a former deputy national security adviser in Israel. He is the author of Zion’s Dilemmas: How Israel Makes National Security Policy, as well as Israeli National Security: A New Strategy for an Era of Change, and the forthcoming Israel and the Cyber Threat: How the Startup Nation Became a Global Superpower. Twitter: @chuck_freilich
