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Israel’s Supreme Court Rigs the Game Again

Gadi Taub
Gadi Taub
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Supreme Court President Esther Hayut flanked by Justices Uzi Fogelman and Hanan Melcer, December 31, 2019.
Supreme Court President Esther Hayut flanked by Justices Uzi Fogelman and Hanan Melcer, December 31, 2019.Credit: Ohad Zwigenberg
Gadi Taub
Gadi Taub

It’s hard to blame those who think that Israel's Supreme Court is in reality the left's legal team. The recent ruling regarding the petition against Knesset Speaker Yuli Edelstein, forcing him to conduct a vote on his own replacement, certainly didn’t do much to diminish the feeling that the game is rigged in the left's favor. This is just one more brick in the wall of left-leaning judicial hyper-activism that we have all come to expect from the court.

Still, there's a ray of light in the ruling. This time the court, which has taught us that the "essence" of democracy (read: minority rights) should prevail over the will of the majority, at long last recognized the importance of the majoritarian principle – or at least recognized its importance when the majority is of the left. The ruling has declared this principle "basic" to democracy. Surely that's good news (Section 10 of the ruling).

But of course, this doesn’t mean that the court abandoned the other “fundamental principles of the system,” or as it was phrased this time: “the foundations of the structure of our parliamentary system” and “the fabric of democratic life” (Section 7).

Israel has no constitution but its judiciary has usurped the authority of judicial review based on what are called Basic Laws, which are said to have constitutional-like stature. But when the court wants to impose its progressive judges' tastes and values and cannot find a hook for it in any Basic Law, it resorts to the mysterious "fundamental principles of the system," which are said to be implied, though never stated.

When these phrases are used, it's a sure sign that the court is about to violate the principle of the separation of powers or run roughshod over explicit legislation. This is the doomsday weapon in the court's arsenal, and it is reserved for cases when there is a clear and present danger to the fundamental principles of the left.

In this case the Supreme Court decided that in the name of “the foundations of the structure of our parliamentary system” and to prevent damage to “the fabric of democratic life,” it can violate the separation of powers and ignore the Basic Law on the Knesset, which states that only the legislature can set its own rules. It has decided to force Speaker Edelstein to call a vote on his replacement – even though according to the Knesset rules he has no obligation to do so before a new government is sworn in.

So the court, which usually tells us that it's there to defend the “essence of democracy” against its "procedure" (i.e. majoritarian rule), has now violated the procedures of the Knesset to advance the majority's will.

Why is this important? Because Benny Gantz's Kahol Lavan party, which does not command a large enough bloc to form a government, can scrap together a contingent majority with the help of the anti-Zionist Arab party in order to take over Knesset committees. This way, it would change the rules of the game in a way that, though legal, is far from fair and has no public legitimacy. But since Kahol Lavan is applauded by the liberal press and enjoys the support of the progressive court, it figured it could just go ahead and do it.

So here is the role the court is now playing: In the name of defending “the fabric of democratic life,” it has thrown the doors wide open for Kahol Lavan to shred “the fabric of democratic life.” It will allow Kahol Lavan to quickly sneak through Erdoganist laws to shackle its rivals before the next general election.

First it will enact a law that rules out Benjamin Netanyahu personally, based on his being indicted regardless of his guilt or innocence to be proven later in court. Second, it will change the form of our government from a parliamentary coalition system to a personal presidential-election system from which Netanyahu will be barred. This will also mean institutionalizing the partnership with the anti-Zionists, who will now be inconspicuous partners within the folds of a general leftist bloc. A post-Zionist revolution is thus underway courtesy of progressive judges.

All this is part of a broader picture in which subverting the will of the voters is the cornerstone. Kahol Lavan has obtained its seat numbers in the Knesset based on the repeated and emphatic pledge that it would not rely on the anti-Zionist Joint List. Almost a third of the party's voters object to this cooperation, amounting to nine of its 33 seats, one poll showed. Moreover, the Joint List should not have been in the Knesset at all, given that the Basic Law on the Knesset forbids parties that reject the state's Jewish and democratic character from running.

But the court has overruled the law repeatedly to permit the Joint List to run on this anti-Zionist platform. So now a majority obtained by deception and reliant on the votes of a party that seeks to dismantle "Zionist colonialism" is going to rig the game in favor of the progressive left.

A friend told me not to worry – the Supreme Court won’t let this ramshackle pseudo-coalition change the rules of the game without even forming a government. Surely there are lines that would not be crossed!

This is touching naivete. There are, apparently, still some people willing to believe that the Supreme Court will defend the right from a violation of the rules by the left – even now, after chief justice Esther Hayut found a way to assemble the panel for this ruling in a way that excluded the conservative justice Noam Sohlberg.

As Prof. Shlomo Avineri once quipped, Israel's unique form of government should be called "courtocracy" – an oligarchic form of government where the court is the nanny of elected officials and the custodian of sovereignty.

The fruits of this system have now come into sharp relief: Courtesy of the court, Israel is watching with bewilderment as a progressive post-Zionist revolution is taking shape, while we all sit at home, hostages to the coronavirus.

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