Analysis

The Ultimate Deal: Netanyahu’s Freedom for His Citizens’ Liberty

Neutering the High Court of Justice would place Israel among countries such as Hungary and Turkey that are rapidly shifting from democracy to authoritarianism

Prime Minister Benjamin Netanyahu attends the weekly cabinet meeting at his office in Jerusalem, Israel, May 5, 2019.
Abir Sultan,AP

The law to curtail the authority of Israel’s High Court of Justice currently under discussion in Benjamin Netanyahu’s coalition talks is the equivalent of a tank brigade making its way to the capital in order to lay siege to the country’s institutions. In our case, the armored column is the coalition’s potential majority in the Knesset, and the order to attack comes from the head of the regime himself. Whatever Netanyahu’s motives, the end result of his onslaught will erode basic rights, destroy the rule of law and turn Israel into a democracy in name only.

>> Netanyahu’s assault on judiciary will lead to rule without restraint ■ Netanyahu's on a quest for survival, and to hell with Israeli democracy ■ How would a broader court override bill help Netanyahu?

According to Chaim Levinson’s bombshell report on Monday, the proposed bill will not only immunize Knesset laws from judicial review, but ministerial decisions and regulations as well. Thus, it will not only entail a counter-revolution to former Supreme Court President Aharon Barak’s “constitutional revolution,” but will also demolish the essence of its administrative law, as it has been practiced since Israel’s creation.  The deal is clear: Netanyahu’s freedom in exchange for that of his citizens.

The law constitutes both a revolution, which is a mass uprising, and a coup d’état’, which is a takeover by limited clique. It is a revolution, because it will be executed in the name of a majority of Israelis who voted last month for Netanyahu and his political allies. And it is a coup d’état because it will be carried out by a clique – in this case comprised of Netanyahu alone – who seeks to seize authority and bend it to his needs, which, in this case, are also singular: Netanyahu’s escape from the criminal indictments awaiting him.

Netanyahu’s partners on the radical right, from Bezalel Smotrich to Yariv Levin, can smell his fear and sense his panic. They seek to exploit his flight to safety in order to achieve their historical goals, which are radically different. They want to liberate the government from the shackles of the High Court and to give it a free hand in dealing with Palestinians in the territories and with minorities inside Israel. They want to liquidate not only the High Court, but also the values that guide its decisions, including civil rights, equality, fairness, and, of course, the rule of law.

A law that would bar the court from reviewing ministerial decisions and government regulations will turn every minister into a potential dictator. Government ministers will be able to make decisions and issue regulations as their hearts desire, which, as experience shows, are often corrupt and malevolent objectives. Israelis may pay more attention to the reality shows that dominate their prime time TV than to the supposedly boring coalition talks, but their outcome could deprive them of their only defense against tyranny. By the time they realize that the new law is detrimental not only to Arabs, leftists and other reviled citizens, it will be too late.

The proposed law is so outrageous and draconic that it seems like a cynical ploy, reminiscent of the famous Jewish parable about the rabbi and the goat: Responding to a congregant who complained of his crowded home, the rabbi first advised him to take in a goat, which only made his situation worse, only to order him to evict it, which made his condensed quarters seem roomy by comparison. When protests reach their peak, Netanyahu and his cohorts will reject the “fake news” and then elicit sighs of relief by announcing that the law will only limit the court’s authority to revoke laws deemed unconstitutional. It’s not that bad, they’ll say. Hardly a putsch, perhaps a putschele.

But the very discussion of such an odious law already stains Israel with the colors of Hungary, which established a separate court system unconstrained by judicial review; Poland, which sought to depose and replace its judges until it was stopped by the European Union; and Turkey, which simply harasses, detains and in some cases imprisons independent-minded judges and prosecutors. The ratification of such a law would remove Israel from the list of liberal democracies and add its name to those countries bent on dissipating the separation of powers and upsetting the checks and balances between the three branches of government, somewhere on the scale between a former democracy and a dictatorship in the making.

And even though such comparisons are usually verboten, it’s hard to shake off associations with the infamous Enabling Act approved by the Reichstag in Berlin in March 1933, which freed the Nazi regime from judicial review not only by the judiciary but also by parliament itself. The law would not have been passed were it not for the support of the Catholic and conservative Center Party, whose leaders accepted Adolf Hitler’s assurances they would not be harmed, until they were. After intimidating or incarcerating most of the opposition, it was left to one solitary brave soul, the Social Democrat Otto Wels – a “leftist” by today’s Israeli definitions – to stand up to Hitler in the Reichstag and thus save a smidgen of the German nation’s lost honor.

The lessons of Hitler’s hostile takeover of the Weimar Republic’s parliamentary democracy compelled most of the countries of the free world at the end of World War II to strengthen their judicial arms and to grant them authority to repeal unconstitutional laws, especially those that infringe on the rights of minorities. Possibly because such comparisons are forbidden, the leaders of Netanyahu’s coalition may have reached the conclusion they are exempt.

After 71 years in which Israel marched in the same direction as most of the Western world and even enabled the High Court of Justice to expand its authority – in the same way that Marbury vs. Madison established the supremacy of the Supreme Court – it is about to take a 180-degree U-turn in the other direction. Even for critics of Barak’s constitutional revolution, who seek to reverse it through gradual reform, the proposed law is akin to throwing out the baby with the bathwater, and then bashing in its head, just to make sure.

The very thought that the Knesset is likely to approve such an odious and blatantly anti-constitutional and anti-democratic law provides ample proof that it needs to be restrained and that the law should remain intact, as it is today.