An earlier version of this Editor’s Note was sent out Wednesday in ToI’s weekly email update to members of the Times of Israel Community. To receive these Editor’s Notes as they are released, join the ToI Community here.
Yariv Levin has been formulating proposals to curb the powers of the High Court of Justice for 20 years, he told the nation last week. And for most of those 20 years, although Levin was a loyal and respected colleague in their Likud party, those revolutionary plans placed him at odds with Benjamin Netanyahu, a long-time outspoken defender of the independence and authority of the court.
Returning to office on December 29, however, Netanyahu signaled that the path was clear for Levin to introduce his long-conceived judicial revolution by appointing him as justice minister. And just six days later, Levin unleashed his proposed onslaught.
Unveiled with what was either deliberately threatening or thoroughly indifferent timing, on the eve of a High Court hearing on petitions against the “reasonableness” of recidivist criminal Shas party leader Aryeh Deri’s return to ministerial office, one of Levin’s four promised “first stage” changes would cancel the very capacity of the justices to invoke “reasonableness” as a measure of legality; if he has his way, the kind of judicial examination currently in progress regarding Deri’s fitness for office would simply be forbidden.
Overall, indeed, Levin’s “reforms” would combine to render the court almost totally incapable of thwarting any of the goals of any Israeli governing majority, as advanced via government decisions or Knesset legislation. His proposals, already taking shape with lightning speed as draft legislation published on Wednesday, require a “special majority” in an expanded bench of justices to strike down laws and/or decisions deemed to contradict Israel’s quasi-constitutional Basic Laws. And even were this to happen, the coalition majority could simply re-legislate such laws via a so-called “override clause.” Re-legislation would be barred only if all 15 High Court justices ruled unanimously to strike down a law — a tall order, made impossibly remote by another of Levin’s proposals that would give the coalition a majority on the panel that selects the justices in the first place.
Even the likes of Israel’s former Supreme Court president Aharon Barak have spoken in support of a reform of the balance of power between Israel’s executive and judiciary — our only two powerful branches of government, since the legislature is a mere tool in the hands of a unified majority coalition such as the one Netanyahu leads today. Barak would back an “override clause” were it to form part of an additional Basic Law, on legislation, provided it required a degree of coalition-opposition consensus to override the justices. But what Levin intends to execute, Barak argued in three frantic TV interviews on Saturday, would neutralize the court and leave Israelis with no protection whatsoever against the removal of any of their rights by the prime minister and his government.
Predicting that Levin’s package, if fully realized, would mark no less than the beginning of the end of modern Israel, Barak paraphrased the German pastor Martin Niemoller’s confessional lament about terrible silence in the face of the rise of Nazism to warn that Israelis must not be like the man who “when they told him they’re killing the communists, says I don’t care, I’m not a communist. And then when they’re killing the liberals, he says, I don’t care, I’m not a liberal. And then ultimately, when he says, they’re killing my family, there’ll be nobody to turn to. That is what is likely to happen.”
In his anguish, Barak offered to lay down his life if that would somehow prevent the evil decree, and suggested that were he on the bench that he headed in 1995-2006, he would resign rather than stay merely to do the prime minister’s bidding. Of course, nothing would delight Levin, and presumably Netanyahu, more than a mass resignation of the current, fairly diverse bench; all the easier to pack it with less inconvenient lawyers.
In an interview with The Times of Israel published Wednesday morning, a former deputy president of the court, Elyakim Rubinstein, counseled that “resigning means desperation, and we shouldn’t come to that.”
Still, Rubinstein, who once served as Netanyahu’s attorney-general, made it clear that he shares much of Barak’s distress at Israel’s potential shift to what he called “democratic dictatorship” — an oxymoron more familiar from the Constitution of the People’s Republic of China.
Ostensibly magnanimous in his declared bid to “restore” Israeli democracy, Levin is promising that his vision will be fully debated in the Knesset’s Constitution, Law and Justice Committee and in the plenum, that “all views will be heard,” and that the legislative process will be conducted “with patience.” But Levin has also said he hopes the legislation will reflect his proposals as closely as possible and that “nothing will deter me.” And an official in the office of MK Simcha Rothman, the far-right Religious Zionism MK who chairs that committee, told the Times of Israel that the government intends to get the proposals passed into law by the end of March.
If — or rather, it would seem, when — the court is denied the capacity to protect Israelis from abuse by its hardline government, we know what we can expect:
The coalition agreements between Likud and its far-right and ultra-Orthodox partners provide, for instance, for legislation to allow discrimination on the grounds of religious belief; a widened exclusion from the military and any other national service for the ultra-Orthodox community; state funding for ultra-Orthodox schools with limited oversight and without the teaching of a core curriculum; the legalization of West Bank settlements hitherto acknowledged as illegal because they are built on private Palestinian land; restricting the provisions of the Law of Return; and changes to the criminal code that, applied retroactively, would ease Netanyahu’s legal woes — all areas where the High Court has previously weighed in and/or would be expected to if it were able.
Saturday night’s test
As the full crushing weight of what Levin and the Netanyahu-led coalition intend to impose has registered with at least part of the electorate, calls for mass protests and demonstrations to resist it are rising — and so too the expressions of intolerance by members of the coalition for such resistance.
On Monday, Opposition Leader Yair Lapid vowed to wage “a war over our home,” while Benny Gantz, the defense minister until two weeks ago, warned that the judicial overhaul could lead to “civil war” and urged the public to lawfully take to the streets, declaring: “It’s time to go out en masse and demonstrate; it’s time to make the country tremble.”
On Tuesday afternoon, in response, Otzma Yehudit MK Zvika Fogel accused them and two other outspoken critics, former MKs Yair Golan and Moshe Ya’alon, of “treason against the state” and called for their arrests. “These four are now talking about war… If they were calling for protests, I’d give them every right to protest. But they’re talking in terms of me being an enemy.”
Only several hours later did Netanyahu slap Fogel down – unequivocally, but with a twist. His statement began, “In a democratic country, opposition chiefs aren’t arrested…” but continued “… just like government ministers aren’t called Nazis, Jewish governments aren’t called the Third Reich and civil disobedience among the public isn’t encouraged.” The Nazi-related reference was to placards likening Levin and the Netanyahu government to the Nazis that were brandished at an anti-government demonstration on Saturday in Tel Aviv.
Fogel’s party leader, National Security Minister Itamar Ben Gvir, told Army Radio on Wednesday morning that the police force he oversees will not be arresting political opponents, but added that he “absolutely understands” how Fogel feels, “when he wakes up every morning to personal threats against him and against his state, against all of our state.”
Ben Gvir is calling for a toughened police response to demonstrations, including arrests of those who “block roads and get wild” and, complaining that ultra-Orthodox anti-draft demonstrators in Jerusalem get rougher treatment by police than the Tel Aviv protesters, equality in the use of water cannons.
Netanyahu, on Wednesday night, appeared to back such toughened policing of protests, declaring that in a properly functioning democracy, “there can be no violence — no license for violence, no license to block roads or to carry out other actions that harm the citizens .”
A much larger demonstration than last week’s is planned for Tel Aviv on Saturday night.
In the current fevered political climate, with Israeli democracy being challenged as rarely if ever before, it constitutes something of a test (including for the organizers, who will want to attract the broadest participation, and not deter concerned citizens who are alienated by Palestinian flags and appalled by Nazi placards).
Netanyahu, who promised his hands would be on the wheel of his hard-right government, has unleashed Levin, watched opposition concerns predictably mount, heard a far-right member of his coalition accuse opposition leaders of treason and mildly slapped him down.
As Israel, and indeed Netanyahu, knows only too well, however, when the divides are particularly acute, not everyone knows when to stop.