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Judicial Coup or Countercoup In Israel
Denis OJALVO
March 2, 2023
Rak lo Bibi
In November 2022, the fifth general election in four years resulted in a decisive victory for the ideological right.
The answer to the question of why this happened is that the common denominator of the coalition formed after the previous elections was made up of all sorts of misfits, including almost all colors of the political spectrum, and that their slogan was "Rak lo Bibi" Meaning "Anybody but Netanyahu ". The inability of the coalition partners to formulate a program that they could offer to the public other than this slogan led to the end of this government.
The rise of the far right
In the 2022 elections, the center-nationalist right-wing Likud party increased its strength, garnering 23 percent of the vote. The Shas party of religious Jews from Arab countries gained strength, while the so-called far right, which follows both religious and nationalist agendas of both European and Arab origin Jews, exploded in the polls. Those who voted for them did so because they perceived that the Likud, which they supported, was unable to take the necessary action on both internal and external security issues because it was subjected to political pressures by Europe and the United States. To elaborate, past governments, under Western pressure, turned a blind eye to European NGO-sponsored squatting by Arabs on state-owned land. Moreover, armed Arab criminal gangs engaged in extortion within their own society posed a threat to internal security.
A perception of victimization
While these developments were taking place, the main reason why the centre-right voters still gravitated towards the Likud was the years-long, but insufficiently substantiated, lawsuits against its leader Netanyahu, which led to the perception that the law was being weaponized to destroy him. The most serious of these lawsuits is the allegation of bribery in the purchase of submarines from Germany. Whereas the most frivolous one is the allegation that Netanyahu traded influence by facilitating US visas for his friends in exchange for gifts of expensive cigars and champagne.
The recent revelations that the security bureaucracy (the police) illegally wiretapped Netanyahu's colleagues for years, blackmailing some of these and attempting to use them as 'state witnesses' against Netanyahu, is a serious threat to Israeli democracy. That scandal reinforced the belief among Likud voters that the law is being politically abused.
According to a survey conducted in Israel in October 2022, only 42 percent of the public trust the Supreme Court. The trust index is 23 percent for the Israeli media, 18 percent for the legislature, and only 9 percent for political parties (January 15, 2023, Jerusalem Post https://www.jpost.com/israel-news/article-728628)
The founding socialist fathers and their sons
The State of Israel was established in 1948 thanks to the organization of working-class intellectual elites with a socialist worldview that promoted collective work and unionization, from the 1910s onwards. The country's economy has been shaped by collectivist production units, the kibbutzim and SOEs - State Owned Enterprises linked to the national labor union, the Histadrut. Likewise, the legal system was established and administered by elites of European descent. These founding elites and their second generation remained in power until 1977. In other words, the political dominance of the founding elites ended with the arrival of liberal nationalist cadres who prioritized free enterprise and the private sector. Or so it was thought. Because the SOE-based economic power was still under the control of the children of the founding generation. Likewise, the field of law and the judiciary was the domain of intellectually competent “White Israelis” of European origin.
The Bibi phenomenon
Benjamin Netanyahu, who attended high school and university in the United States and became prime minister in 1996, is the son of Benzion Netanyahu, a renowned historian and professor who was estranged from the socialist elite. Netanyahu studied at MIT, one of the most prestigious universities in the US, and worked for the Boston Consulting Group, a consultancy firm that has employed many famous people. In short, thanks to his family's privileged intellectual background and position, he had the opportunity to get to know American society, culture, economy, and politics from every angle. In other words, when he became prime minister, he was ready to make reforms that would bring Israel's economy to the forefront of competitive and high-tech initiatives that would open it up to the world. The event that made Netanyahu famous was his participation in the successful rescue operation of the SABENA plane that was hijacked by terrorists and landed in Israel in 1972. His post as Israel's ambassador to the UN from 1984-88 prepared him for politics. He joined the Likud Party in 1988 and served as prime minister from 1996 to 1999 and from 2009 to 2021.
The weaponization of law / Lawfare
Netanyahu, a politician who can be described as an "All-round athlete" in politics, has emerged victorious in almost all his struggles with his internal and external rivals. He has therefore made many enemies on these two fronts. His political rivals within the party have gradually split and formed new parties. For example, Tzipi Livni, who headed the Kadima Party; Avigdor Liberman, who founded the Israel our Home Party; Naftali Bennett and Ayelet Shaked, who founded the Jewish Home Party; Moshe (Bogi) Yaalon and Gideon Saar, who founded other small parties that faded out.
The heads of the rival parties also chose to shift their struggle with Netanyahu from the intellectual to the legal sphere, as they were overshadowed by him in almost every respect when their qualifications were compared. With the blind eye of the judiciary, they filed various lawsuits of questionable coherence against him. Whereas the Judiciary power could have prevented the filing of these lawsuits within the framework of the “Reasonableness Argument” that it often uses. That, owing to the public perception that law was politically instrumentalized, and divided the society in two.
Debates on the judiciary in Israel
The judiciary has not only failed to prevent the filing of these lawsuits, but also adopted attitudes that gave the impression of being a party to these. For example, bureaucrats with the official title of 'Legal Advisor to the Government' went beyond their mandates and intervened in the functioning of both the government, i.e. the executive branch, and the legislative branch, as if they were the appointed commissars of the Judiciary, and engaged in public debates with both other branches of government.
It is unprecedented in any democratic country in the world for a bureaucrat with the status of an advisor to interfere to such an extent in the functioning of the executive or the legislative branch.
Likewise, the Supreme Court (Bagatz), the highest authority of the judicial branch, exercises its right to interfere in the legislative branch, although that right is not explicitly granted to it by law. That, by citing two Basic Laws with constitutional force, and interferes in both the legislative and executive branches activities.
These are The Basic Law on Human Dignity and Freedom, and The Basic Law on the freedom of Employment/work, which were voted on by the legislature, the Knesset, in 1992.
The problem is that there is no difference between voting on ordinary laws and voting on the Basic Laws, which in fact should be voted on by a 'qualified majority'. The drawbacks of this practice would later become apparent. Namely, one of these laws was enacted with only 23 votes in the 120-seat parliament, the other with 31 yes votes and 21 no votes. Therefore, the current government, which has a parliamentary majority, has the authority and the power to amend these Basic Laws with a simple majority.
Aharon Barak, who presided over the Supreme Court from 1995 to 2006, cited these basic laws as justification for what might be termed 'judicial activism' and introduced the subjective element of the “Reasonableness Argument”, transforming it into a practicable precedent.
The current debate
The perceived overreach of the judiciary, its perceived involvement in the struggle between political parties, and the need for reform in this area have been on the political agenda for many years. Today, former statements by Yesh Atid chairman Yair Lapid and Gideon Saar, who today are fiercely opposed to the government's reform bill, show that they are aware of these shortcomings and that they need to be corrected, are available online.
What is in the government's reform bill?
In a nutshell,
• The revision of the status and job description of the Legal Adviser to the Government who is overstepping its authority
• Overcoming the Supreme Court's interference in the legislative branch by a majority vote (the overcoming clause)
• The abrogation of the subjective 'reasonableness argument' clause that provides grounds for interference in the legislative and executive branches,
• and The change in the composition of the Board for the Appointment of Judges, which is at the heart of the dispute...
In the current situation, the high judiciary is the last bastion that the Labor Party bureaucrats, who lost power in 1977, have been successful in resisting to this day. According to the current practice, no new members can be appointed without the consent of the existing members of the judicial appointments board. Over the years, the Supreme Court has taken on the appearance of a self-cloning caste and does not allow anyone to enter the high judiciary except for like-minded judges. For example, Jews of Arab lands’ origin, who make up more than half of the population, have only one representative in the Supreme Court. Almost all of them are of European descent and Labor Party sympathizers. The only exceptions are Salim Joubran, a Christian Arab who retired in 2017, and a Muslim Arab serving currently. After the envisaged reform, the aim is to open the way for all segments of society to be represented in the Supreme Court. After all, in all democratic countries, Supreme Court judges are not self-appointed; they are appointed by parliaments.
Why the uproar?
Why has the composition of the Judicial Appointments Board caused such a political uproar?
One of the main arguments used by rival politicians to purge Netanyahu from the political domain is as follows:
"Netanyahu, a shady politician with a string of lawsuits against him, is not qualified to be Prime Minister. He should therefore be prevented from practicing politics."
In other words, his opponents instrumentalize law in order to remove Netanyahu from office, after failing to defeat him at the ballot box.
Opposition politicians are worried that if the current Supreme Court structure changes, the cases against Netanyahu, which are widely perceived to be politically motivated, will be dropped. Their fear of losing this legal lever has pushed them out of control to the point of telling foreign investors, not to come to the country, to withdraw their investments, as democracy will be destroyed if the reform bill becomes law. Opposition politicians invite foreign dignitaries and statesmen, to exert pressure on the Israeli government, and incite the local population to riot and use weapons if necessary.
Justified concerns
Secular “White Israelis” are concerned, and with good reason, about the attempts of the religious parties in the coalition to impose their values on the public. Of the 64 members of the coalition, 32 are from the Likud party, which has a strong secular streak. Netanyahu is the main representative of this strand. The religious parties have little chance of forming a coalition with other parties. Therefore, to fulfill at least part of their agenda regarding security and their historical right to settle the land, they seem to be obliged to continue their coalition with the Likud.
Let's see how the current arm wrestling between the political parties in Israel will play out.
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