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Netanyahu faces new public trial over judicial reforms

Israel’s proposed legal revolution heightens tensions in the Jewish state

Israeli Prime Minister Benjamin Netanyahu leads a Likud party meeting at the Knesset, Jan. 9, 2023. (Photo: Olivier Fitoussi/Flash90)

A group of more than 2,300 North American rabbis and cantors have accused Israeli Prime Minister Benjamin Netanyahu of pursuing judicial reform for his own personal gain.

“There is no question Prime Minister Benjamin Netanyahu seeks to weaken the judiciary in order to allow the passage of laws that would protect him against the multiple charges he faces for corruption and breach of trust,” T’ruah, a rabbinic human rights organization, said in a statement Monday.

Netanyahu was indicted on charges of bribery, fraud and breach of trust at the end of 2019 and has been entangled in an ongoing trial ever since. 

The rabbis' stinging criticism came after Israel’s newly-appointed Justice Minister Yariv Levin last Wednesday rolled out the “first stage” of his judicial overhaul plan, including limiting the High Court’s ability to invalidate laws and government decisions by requiring an unspecified “special majority” to do so. The reforms also include an “override clause” that would allow the Knesset to trump even the special majority’s ruling and re-legislate such laws. 

Levin’s reforms also give the government more control over selecting judges, allows ministers to select their own legal advisors rather than being provided council by Justice Ministry-appointed advisors and prevents the court from using what it calls “reasonableness” to decide if legislation is legal. 

The plan was met with accolades by the coalition, including Religious Zionism party leader Bezalel Smotrich, who had presented a similar plan during his election campaign and said Levin’s reforms were mandated by Israeli voters. 

“We have a full mandate to increase the Israeli public’s faith in the judicial system, to strengthen Israel as a Jewish and democratic state,” Smotrich said.

But others – including the man who is arguably Israel’s most renowned legal figure – have said such an extreme level of judicial reform could put Israeli democracy at risk. 

In interviews that were aired last weekend on Israeli channels, former High Court President Aharon Barak, 86, said the reforms would destroy Israel’s system of checks and balances.

“We will, in fact, have only one authority – the prime minister,” Barak said.

He equated Levin’s proposal to a “revolution with tanks” and said he would “be prepared to go before a firing squad” to stop them in their tracks.

“The rights of everyone – Jew, Arab, ultra-Orthodox, not ultra-Orthodox – are in grave danger,” Barak said. “Your right to dignity, to freedom, to life, will be gravely harmed – and there will be no court to turn to.”

IS PLAN DESIGNED TO HELP THE PRIME MINISTER?

Some believe that weakening the court is exactly the prime minister’s aim.

“These reforms are of vital import to … the scandal-ridden Netanyahu who is still in the midst of a corruption trial,” wrote Tel Aviv University Prof. Yoav Fromer in Tablet Magazine. 

Netanyahu, critics have said, appointed his No. 2 in Likud as justice minister to take such steps on his behalf. 

Levin rolled out his proposal the night before the High Court debated petitions against the ministerial appointment of Shas leader Aryeh Deri, a convicted tax offender. 

Barak said doing so was the equivalent of “putting a loaded gun on the table” and threatening the court: “You are preparing to utilize the reasonableness clause – know that I’m going to cancel it.”

But legal scholar Prof. Asher Maoz told ALL ISRAEL NEWS that he did not believe Levin was actually acting on behalf of Deri, who did not necessarily want such a defense. Rather, “Levin had in mind another client: Netanyahu himself.”

Although the reforms would not have any immediate impact on Netanyahu’s trial and there is no direct connection between the current reforms and the legal process for the prime minister’s case, if the override clause is eventually passed, the Knesset would have the last word on everything and the courts would not be able to block any kind of legislation, explained Jewish People Policy Institute President Prof. Yedidia Stern. 

“One can think about pieces of legislation that may come in the future that would benefit Netanyahu directly and indirectly,” Stern said. “Such a reform might be opening the door for the kinds of things that we do not see yet.”

Levin said that he was presenting on the “first stage” of his plan and “maybe we will see more things come in a second or third stage that will be related to Netanyahu’s trial,” Stern told AIN.

However, Levin has denied the timing of his announcement being connected to Deri’s hearing or that the reforms have anything to do with Netanyahu’s ongoing trial. When asked about the timing of his announcement of the reforms at the press conference in which he unveiled them, he said he had been working on them for several years and announced them immediately upon the government’s formation.

More conservative lawyers have said that the situation could actually be the reverse: Rather than judicial reforms being an effort by Netanyahu to take revenge against the courts for his trial, “maybe the ongoing investigations against Netanyahu are revenge against him by the court,” said Kohelet Forum’s Prof. Eugene Kontorovich. 

“The fact that the courts believe they have the right to determine if someone can be prime minister while indicted, even though there is nothing in any basic law that speaks to that, is an example of judicial overreach,” he said. 

NETANYAHU COMPARES PLAN TO AMERICAN SYSTEM 

Netanyahu defended Levin’s proposal at Sunday’s Cabinet meeting, countering claims that the reforms could mean the end of democracy.

“Until recently, many people from all parts of the political spectrum have recognized the need to restore the balance between the three authorities,” the prime minister said, citing sweeping statements against the judicial branch by former Prime Minister Yair Lapid and former Justice Minister Gideon Sa’ar.

“Are the U.S. and the countries of Western Europe, in which there is no far-reaching judicial activism such as ours, not exemplary democracies today?” Netanyahu asked. “The effort to restore the correct balance between the authorities is not the destruction of democracy but the strengthening of democracy.”

He said that he and his coalition understood that judicial reform needed to be done “responsibly and sagaciously” and that Levin’s proposal would be discussed “seriously and in depth by the Knesset Law, Constitution and Justice Committee.”

Of course, this committee is chaired by the Religious Zionism party’s Simcha Rothman, who is a proponent of the proposal and who has indicated that the legislation would be rapidly advanced.

Maoz, who is considered among the liberal elite, stressed the need for checks and balances and warned against moving too fast.

He cited, as an example, a situation that took place even before Barak’s time in which, ahead of the elections for the seventh Knesset, the Knesset enacted a law granting funding only to existing parties and no new lists. The judge at the time ruled that the law violated the equality stipulated in Basic Law: The Knesset, and he ordered the finance minister to refrain from acting on it unless it was re-legislated so that the inequality was removed or it was accepted by an absolute majority of the Knesset – as stipulated in the Basic Law. 

The example also contracted another innovation that Levin wants to introduce, Maoz noted: Only those who are personally harmed by a law can petition the High Court. 

In this case, the petitioner was a man named Dr. Arthur Bergman, who would not have been harmed by the new law since he did not intend to run on a new party list. 

Maoz added that one could not compare the existing politicization of the American courts to the proposed politicization of the Israeli courts, because the two countries' systems of government are completely different. 

“Americans have a constitution,” Maoz stressed. “Americans have two houses and a president that is elected separately from the legislature and the court. 

“We do not really have a parliament here,” he continued. “The prime minister’s party is always part of the majority in the Knesset. If judges are named by the government, then all three authorities will actually be the government.”

CONSERVATIVE LEGAL EXPERTS STRIKE BACK

On the other hand, conservative lawyers have pointed out that the court’s ever-expanding activism really only began in the 1990s with the passing of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. At the time, Barak announced that a “constitutional revolution” had occurred, said these laws had constitutional status, and gave the court the power to strike down laws it felt were contrary to them. 

“Just like that, Israel had a constitution, without the Knesset members, the government or the public being aware,” wrote Russel Shalev, a lawyer at the Kohelet Policy Forum, in an article published by Fathom. “Of course, the Basic Laws nowhere mention the power to strike down laws.”

Kontorovich said that the court’s ability to strike down laws “because they think they are a bad idea” is itself unreasonable. He added that “the reform involving the override clause is far more controversial than it is significant or effective.

“The problem of override is you have to do it separately each time,” he explained to ALL ISRAEL NEWS. “Look at the media hysteria now. This would be happening for every override, so it will make override far less a significant tool than its critics think or its proponent’s hope.”

Shalev wrote that not only will these reforms not be the death of Israeli democracy or the end of minority rights, but that they are “essential to return a basic balance to Israel’s political system because, for decades, de facto ultimate power over almost every issue of political life has been in the hands of a self-perpetuating, unelected judicial aristocracy, running the country according not to any written law but to their own vision of the good.”

He added that a system of checks and balances already exists for the Knesset, which is comprised of multiple parties, and coalitions, which by nature require compromise and give-and-take.

“The Knesset and executive are limited by elections and are directly responsible to Israel’s citizens, who can campaign, protest or take to the streets. Should the Knesset adopt policies that curtail the rights of Israel’s citizens, they will promptly be ejected in the next elections,” he wrote. “This is in contrast to the Supreme Court, who are insulated from popular accountability and face no consequences for judicial legislation or policy creation.”

Kontorovich said that the issue is not as much problems with the proposed judicial reform. Opposition to the proposals, instead, stems from the fear of the liberal elite and left-wing judges that they will lose their power.

“No one is having their rights taken away,” Kontorovich told ALL ISRAEL NEWS. “These tactics are designed to scare the public.”

A LOOK TO THE FUTURE

Is Israel at a crossroads? Should the reforms be pushed through, or halted in their tracks?

The people should decide, Stern said.

“We have tens of thousands of professionals of law with opinions on this, and they should be heard,” he stressed. “The future of democracy depends on our ability to make these reforms in a tailored way.”

And as for Netanyahu? He said more than his trial, the prime minister’s legacy is at stake. 

“I think Netanyahu should consider his place in history,” Stern noted. “If the reforms go through as is, Israel will be a less secure place for Netanyahu’s grandchildren. The prime minister should consider the future of the State of Israel as his foremost responsibility as a leader of the Jewish people in our generation.”

Maayan Hoffman is a veteran American-Israeli journalist and strategic communications consultant. She is Deputy CEO - Strategy & Innovation for the Jerusalem Post, where she also served as news editor, head of strategy and senior health analyst.

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