In early 1999, as he was fighting a losing election battle against Ehud Barak, first-term Prime Minister Benjamin Netanyahu promised the ultra-Orthodox parties that, should he win, he would form a commission to examine the powers of the High Court of Justice.
The ultra-Orthodox (or Haredi) leaders were enraged by the justices having ruled against the blanket exemption of yeshiva students from military service and the decision to uphold an administrative fine against the Haredi head of the religious council in Jerusalem (he was refusing to chair meetings with newly elected members from the Reform and Conservative movements).
The tactic worked — the ultra-Orthodox community overwhelmingly voted for Netanyahu on May 17, 1999 (Israel was then still experimenting with direct elections for prime minister) — but the strategy failed. Fifty-six percent of the Israeli public voted for Barak, turfing Netanyahu out of office after only three years.
A decade passed until Netanyahu regained power, but since his comeback in 2009 he seems to have forgotten the promise he made to the Haredim.
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Netanyahu has now served continuously as prime minister for 10 years. But despite occasional grumbling over a ruling by the High Court and the entreaties of some of his governing coalition partners, he has not even tried to address the balance of power between the elected politicians and the judiciary.
Twenty years ago, the proposal was merely an election promise, a frantic attempt to hold onto power. It was not an actual policy or part of his political philosophy.
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But on Monday morning, Haaretz’s Chaim Levinson reported that Netanyahu, along with a number of allies both in Likud and the Union of Right-Wing Parties, is planning to pass a law in the new Knesset that will neutralize the power of the Supreme Court (in its capacity as the High Court of Justice) to review and block legislation and government decisions.
This emasculation of the High Court justices is aimed at enabling various policies of the right-wing and religious parties, but primarily at shielding another expected piece of legislation from High Court intervention — a change to the Knesset members immunity law. This will make it much more difficult to charge one of them in court, particularly a prime minister facing three indictments of bribery and fraud.
Just like in 1999, Netanyahu’s prime motive for taking on the High Court is not an ideological aversion to judicial activism, but political survival. He’s had 10 years of compliant coalitions to try to do it, but he didn’t even help the right-wing and Haredim parties pass their cherished “overriding clause” — which would have helped them pass pieces of legislation opposed by the court. But things have changed: Now it’s his own neck on the line and suddenly Israel is ripe for a judicial revolution.
Netanyahu, it must be said, has never been much of a reforming prime minister or a fan of landmark legislation. He prefers to try to rule Israel in a high-handed presidential style and to cling, as far as possible, to the status quo wherever politically expedient.
Those who have known him a long time, including critics he forced out of Likud such as former Justice Minister Dan Meridor, are convinced that deep down Netanyahu has no desire to erode the power of the courts. His coalition partners may abominate the high and mighty High Court justices, but Netanyahu himself socially belongs to the milieu of Jerusalem’s Rehavia neighborhood, where he grew up and which, back in the day, was the place where many judges resided. His aunt, Judge Shoshana Netanyahu, served a quarter of a century on the bench, the last 12 years being on the Supreme Court.
But while he may have once belonged to the more liberal-minded stream of Likud, which combined Jewish nationalism with respect for the rule of law — embodied in Menachem Begin’s famous saying “There are the judges in Jerusalem!” — Netanyahu seems to have abandoned that tradition of Jabotinskean hader (decorum and dignity) long ago.
Netanyahu’s Likud nowadays is much closer to the more radical “maximalist” stream of Jabotinsky’s revisionist Zionist movement that preferred authoritarianism and even fascism over democracy. The last remnant of the old-style Likud was Begin’s son, Benny, who as a lawmaker in the last Knesset opposed the nation-state law, but is now no longer in parliament.
Aside from Begin Jr., there’s President Reuven Rivlin, of course, as the last liberal Likudnik. But he doesn’t have a vote.
Are there any other Likud lawmakers who may object to eviscerating the High Court just to serve their leader’s interests? Perhaps Gideon Sa’ar, now returned from his time-out from frontline politics, and a small handful of other MKs are probably not happy but are unlikely to rebel — which would mean political suicide in the Netanyahu-dominated party.
Another potential holdout is Moshe Kahlon’s Kulanu, with its four lawmakers. But Kahlon, who in the past presented himself as a guardian of the Supreme Court, now desires beyond anything else to remain as finance minister in the new government. A steep coalition price for the leader of a tiny party, but if Netanyahu is prepared to dismantle Israeli democracy just to stay out of court, he’ll have no problem paying it to keep Kahlon on board. Either way, all it would take is five rebels from the potential coalition of 65 lawmakers to foil any legislation.
It may not get that far. The proposals being made in the coalition talks may be just trial balloons, or a shot across the legal establishment’s bows to try to intimidate Attorney General Avichai Mendelblit from pushing ahead with indictments too quickly.
Another possibility is that Netanyahu would actually prefer forming a center-right coalition with Benny Gantz’s Kahol Lavan and, by posing a potential threat to the Supreme Court, he is creating an excuse for Gantz to join the coalition in order to “save Israeli democracy” — even if it means supporting an indicted prime minister.
Netanyahu may have promised in his victory speech on Election Night to form a coalition with Likud’s “natural allies,” but so what? He also promised before the election that he wasn’t planning an immunity law. If a coalition with Gantz offers him temporary sanctuary, he could take that as well.
He doesn’t necessarily need to dismantle the High Court. All he wants is to survive as prime minister. Israel’s democratic system is just collateral damage.