Editorial

The Law Against Democracy

Prime Minister Benjamin Netanyahu at a government meeting in Jerusalem, May 12, 2019.
Emil Salman

Even though it’s still a work in progress, Benjamin Netanyahu’s fifth government could well turn out to be the most destructive of all. His back to the wall, waiting for Attorney General Avichai Mendelblit to decide whether to indict him for fraud, bribery and breach of trust, as part of the coalition negotiations between Likud and the Union of Right-Wing Parties, Netanyahu is advancing a far-reaching legislative initiative that would in part grant him immunity from prosecution.

The bill’s purpose goes far beyond limiting the ability to determine the guilt of politicians suspected of corruption in general; it creates an escape route from the law for the criminal suspect in the prime minister’s residence. This is not just about overturning a 2005 amendment to the law governing Knesset members. Prior to that date, lifting the immunity of a legislator the attorney general sought to prosecute required an active decision by the Knesset.

The proposed amendment undermines the Basic Law on the Judiciary, so sacred to the rule of law in Israel. It would deny the High Court of Justice of the authority to rule on the constitutionality of decisions made by the Knesset — including not only laws but also matters such as removing an MK’s immunity. The High Court would not have the authority to deliberate on the constitutionality of resolutions passed by cabinet ministers, ministerial committees and the cabinet. The right to file a so-called public petition, in cases where a governmental decision injures an entire population but a single individual cannot be named, would also be rescinded.

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Passing such a law would in effect strip the High Court of its ability to safeguard the foundations of the rule of law, basic human rights and in effect the foundations of the democratic process. For example, if the Knesset passes, with a simple majority vote of just 61 MKs, a law saying elections will be held every eight years, nobody would be able to stop the ruling majority from carrying out its desires for absolute undemocratic rule, lacking a democratic nature. Any cabinet member could take into their own hands any decision of an official in their ministry and “immunize” it from judicial oversight. The result will be draconian, repressive, even illegal decisions from which the High Court of Justice, its hands now tied, will be unable to rescue us.

Israeli democracy, in which there is no constitution and the coalition can amend a Basic Law in a flash, depends on the High Court to preserve the minimal checks and balances and prevent the government from becoming all-powerful. Neutering the High Court, according to the Netanyahu-Bezalel Smotrich initiative, will mark the end of democratic Israel. All supporters of Israeli democracy — both in the coalition and the opposition, whether in the public or private arenas — have a duty to act to put an end to this legislative initiative.

The above article is Haaretz’s lead editorial, as published in the Hebrew and English newspapers in Israel.