Does the issue of judicial reform pit right vs. left in Israel?
Not really, but it does raise the important distinction of Democracy vs. Rule of Law: Despite claims by proponents of judicial reform that only “left wingers” oppose the bill, right wingers, religious Israelis also voiced opposition
The rallying cry of Prime Minister Benjamin Netanyahu’s government is that Israel’s liberal elite left-wingers are leading opposition to proposed judicial reform.
Netanyahu called the massive protest against the legislation on Monday “the left-wing demonstration.” And a key ally of his in the Likud party, David Amsalem, took it a step further when he said from the floor of the Knesset that protestors were wearing Rolex watches and driving Mercedes, implying all the protestors are from the privileged class.
Even editorial writers call out the “left,” as did right-wing sharpshooter Caroline Glick in her op-ed, "It’s not about democracy.”
But a lawyer at Monday's protest told ALL ISRAEL NEWS this is no way to characterize the debate.
“God forbid. It's not about left and right,” Jul Bardos said, noting that at all of the recent rallies “there is left and right together – we are all in it together because we want to live in a Jewish democratic state.”
It is easy, if not convenient, to pit left vs. right when it comes to political issues, but this is a tall order in Israel, where numerous parties adhere to many ideologies and do not align solely as right or left on all issues.
Netanyahu’s government is comprised of two ultra-Orthodox Jewish parties, Shas and United Torah Judaism, which are generally in favor of expanding welfare benefits, receiving stipends for men to study in a yeshiva rather than work and are opposed to their own people serving in the Israeli military. Hardly “right wing.”
Meanwhile, two parties currently in the opposition are decidedly right wing – New Hope led by Gideon Sa’ar and Yisrael Beytenu led by Avigdor Liberman. Both parties are strong on security and are nationalistic.
Yet they are fighting this judicial reform.
“We are strongly opposed to the politicization of the process, nominating the judges and politicization of all legal branches of this country. This is extremely important in order to keep the balance between the branches of power in Israel,” former Justice Minister Gideon Sa’ar told ALL ISRAEL NEWS.
Both sides claim “democracy” is their reason for pushing or fighting the legislation. Proponents want to expand democracy, they say, and make sure the public is better represented by the courts. Opponents say they are protecting democracy from its slippery slide into a fascist form of government.
Defending the high court, Supreme Court President Esther Hayut noted there is a difference between democracy and the “rule of law.” The law still applies even when the electorate votes a convicted criminal into office, for example.
“Anyone who claims that the majority who elected their representatives to the Knesset, thereby gave them an ‘open check’ to do as they please, bears the name of democracy in vain,” Hayut said in a speech last month.
For example, the court decided that the appointment of Shas head Aryeh Deri as minister was “unreasonable in the extreme” leading to his firing. But the court took into account that as part of his plea bargain, Deri avoided a label of moral turpitude by resigning and convincing a judge that he was permanently leaving politics.
Another example of what critics call overreach is a requirement in the legislation for a unanimous decision in order to strike down a law that contravenes Israel’s Basic Laws.
“This [legislation] would constitute a very substantial reduction of judicial review and this has consequences for the court to defend rights such as those in Basic Law: Human Dignity and Liberty,” said Gur Bligh, legal advisor to the Knesset Constitution, Law and Justice Committee.
Bligh said this bucks the trend of most democratic countries which are increasing judicial review and added that it would be "unusual" for all 15 justices to vote as one voice.
In Israel, the three branches of government are the executive (the majority coalition in the Knesset), the legislative (the full Knesset) and the judicial.
The first two overlap as they are comprised of many of the same people and, in any case, the majority bloc will almost always win any vote in the Knesset with its majority. That leaves the judiciary on its own. However, under the legislation going before the Knesset for a vote next week, the government (executive branch) would have a majority on the selection committee for judges.
Bardos explained how he believes three key elements of the legislation will change the judiciary branch.
“The first one is to have the majority in a committee that elects the judges so they can elect whoever they would like to have as a judge in the Supreme Court,” he began. “The second thing is they want to take away from the Supreme Court the possibility to use certain sections that are in our jurisprudence and, actually, in that way, to stop the Supreme Court to have …the checks and balances that are necessary in order to see that every legislation is according to the basic human rights of everybody in this state.”
The third, he said, is the most dangerous. If the government disagrees with a Supreme Court decision and views it as unconstitutional, Bardos said “they will have the capability to actually overrule it with a special clause in the law that gives them the power to overrule any decision of the Supreme Court.”
“All these three components, all together, are a total abolition of the democratic system, which regards the three different parts of democracy – the parliament, the government and the judicial system – as having their own force and their own right, according to our democratic international system.”
While most Israelis favor reform of some sort in the judiciary, they note the timing of this particular legislation, which was fast tracked in committee and backed by a prime minister with three criminal indictments and supported by Deri, convicted twice on separate bribery and tax offenses.
“They both are doing everything in order to keep the government in their hands and to control the legislation, as well as the judicial system,” Bardos said.
The chairman of the Knesset Constitution, Law and Justice committee Simcha Rothman – one of the architects of the legislation – said it will “correct the harms caused by the judicial revolution and return the power that was usurped by a minority elite back to the people from which it was taken.”
“We strive to achieve a balance that retains the power to govern in the hands of the governed, not the self-appointed philosopher judge-kings,” he wrote in an editorial published in Ynet on Feb. 10.
Rothman maintains that the Supreme Court has become political and is the “unprecedented ultimate ruler on any and every policy issue, unlike any known Court in the world.”
He argued that “unreasonable” clause applied to ministerial appointments, the attorney general’s veto power over government decisions and the Supreme Court’s ability to strike down Basic Laws give disproportionate power to the judiciary – power that should be in the hands of elected officials instead not in those of the “minority elite.”
To be sure, most of the “left wing” is opposed to the judicial reform, but they have been joined by centrist and right-wing sectors of Israeli society.
Far-left Israeli lawmaker Ofer Cassif – who criticizes Israeli policy vis-à-vis the Palestinians – said this legislation is “literally the end of the independent judiciary in Israel.”
“I have a lot of criticism towards the judiciary and, of course, Israel already employs a dictatorship in the occupied Palestinian territories,” he said. “But now they want to take those ingredients or components of the dictatorship into Israel proper. And the first step is to eliminate the judiciary.”
“This is only the first step because, once this obstacle is ruled out, it paves the way for the government to do whatever they like vis-à-vis the citizens, to harm their basic rights, to eliminate, actually, the liberties.”
But in the sticky world of politics that uses right-left labels, the question remains: What would the “left” – or any opposition party – do with such reforms if they were in power?
Nicole Jansezian was the news editor and senior correspondent for ALL ISRAEL NEWS.