The government would have you believe the Supreme Court has been crazily activist and must therefore be reined in for balance and governability to be restored.
This is one of several lies being spread by the populist right in its effort to turn the court system, popular only a few years ago, into an enemy of the people. The goal – as I predicted on these pages three days before the November 1 election, even as the country’s hapless liberals were concluding their somnolent campaign – is to turn Israel into a Hungary-like authoritarian state.
The mistake of the Center-Left, similar to liberals all over the world, is to politely engage the populist gaslighting. Thus many of them tend to meekly concede that reforms are needed but nothing resembling the planned systemic putsch is needed.
These are the plan’s main elements: Parliament would be able to overrule the Supreme Court by a simple majority; judges would be chosen by the coalition; the civil service would be politicized and legal advisers (who have played an oversight role) defanged; as a bonus for aspiring embezzlers, fraud and breach of trust would be eliminated as infractions (leaving only bribery where the intent is difficult to prove).
The cynics behind this are cleverly leveraging the misconception of many people that democracy is nothing more than elections and majorities. If they succeed, it will eliminate any check on the executive (which, because of the electoral system, controls the apparatchiks in parliament) and thus end guaranteed civil liberties (like freedom of speech and perhaps the sanctity of contracts) and minority rights.
THE GOVERNMENT claims a strong mandate for this because of the election. But Likud had no platform and Netanyahu never spelled out these proposals. Moreover, the election was a tie by votes and by some measures, the opposition won more backing; it is only due to the splits in the Left and the Arab parties, which wasted 6% of the vote, that the Right, religious bloc ended up with 64 of 120 seats.
Netanyahu also tells foreign interviewers that the judges in Israel have been allowed to nominate themselves. Since Israel’s longest-serving prime minister surely knows the truth, it is a lie: Judges account for three of the nine members of the Judicial Selection committee, versus four politicians (three from the coalition, generally) and two members of the Bar Association.
No selection system is perfect but this one attempts a balance; if politicians were given control, Israel’s political culture, especially when the Right is in power, would ensure that jurisprudence is a joke, as it is in Turkey or Russia.
The reformists also ridicule the court’s rare use of reasonableness as a short-cut argument – ignoring that versions of plausibility exist all over the world in the form of prima facie (on the face of it) and res ipsa loquitor (the thing speaks for itself).
Israel's court rarely ever did activism
The biggest lie is the jackhammer refrain about juridical activism. The court has in fact not dared to decisively impact the burning issues rending Israeli society.
MOST STRIKING has been its inaction on the occupied territories, which an activist, humanist, liberal court would have ripped to pieces. Many Israelis will argue that Jews cannot occupy their own land, alluding to divine Biblical promises. But the world order knows only state actors with sovereign territory. Israel is an occupying power because it controls the West Bank over the objections of the overwhelming majority of its population by military force. Had it annexed the territory, this would be different but it has not, coveting the land and not the people.
This is a situation that is widely codified in international law, which is hard to enforce but taken seriously by the democratic world. Its basis is the 1949 Geneva Conventions, regulated by the UN Charter. And here’s what an occupying power is not allowed to do:
- Transfer of civilians into the occupied territory: Israel violates this anew with every new settler.
- Collective punishment: Israel does this every time it enforces a closure in reaction to or in anticipation of a terror attack, or withholds monies from the Palestinian Authority.
- Taking of hostages: Many of the security detainees could fall into this category.
- Reprisals against protected persons or their property: Every sealed home or arrest of family members, and of course all deportations, are cases of this.
The Supreme Court has done little against any of this. It did not prevent land confiscations; it did not deny the settlers special rights to vote while not being in Israel; it rejected applications that would have undone the obstruction of Palestinian access to their farmlands; it allowed making it an offense for anyone to advocate boycotting Israeli or settlement products – a blatant violation of freedom of expression; and it even upheld the right of settlements to deny residence to Israeli Arab citizens based on their social suitability – an affront to equality.
ACCORDING TO the Israel Democracy Institute, in the entire 75 years of Israel’s existence, the court meddled with laws or clauses just 22 times, and many of them on minor matters like taxation on third apartments. Only three rulings had any connection to the occupation: In 2006, the court accept a petition against an amendment that granted the state immunity from compensation claims from Palestinians injured by security forces; in 2010, it disallowed a regulation allowing for a hearing to extend the detention of a suspect in a security offense without the suspect’s presence; and in 2020, it ruled that a law intended to retroactively legalize illegal construction of settlements on Palestinian private land causes disproportionate damage.
In my time as chairman of the Foreign Press Association, I was involved in several appeals to the Supreme Court to overrule the authorities on various matters, especially access to closed military zones that were considered abusive. The court generally took the word of the Shin Bet and the military as gospel and was essentially their rubber stamp.
It is true that the court tried to prevent the very worst abuses and to keep the actions of the occupation authorities in line with Israel’s law (even though the law was never applied to these lands). This kept the world from interfering too much, for example, by hauling IDF officers to the Hague. But it never challenged the legality of controlling millions without political rights for over a half-century, while building towns for Jews only all around them.
About the only area where the court has dared make a peep was the attempted rejection of machinations giving the haredim special rights to not serve in the military. But it was weak and ineffectual: the sectorial draft exemptions remain. So do the special dispensations, like lifelong subsidized salaries for students of religion – any equality with computer science students, who pay tuition and do not receive subsidies, be damned.
THE COURT bobbled its one chance in recent years to make a real difference when it rejected petitions to disqualify Benjamin Netanyahu from the premiership because of his bribery trial, as any minister or mayor automatically would be. It stuck to the letter of a ridiculous law.
Why has the court rarely overruled laws?
Given all this, one must ask what have the knights of governability so very ruled up?
The answer is that there are a number of groups with a clear interest in weakening the court: The haredim want no interference with their special arrangements, the far Right wants carte blanche to oppress the Palestinians and politicians who want to enrich themselves want the executive to be omnipotent. This last group is critical in a cabinet featuring convicted criminals and criminal defendants, and it is powerful now that Likud’s leader has joined its ranks.
There is one more pressure group for trashing democracy: unpatriotic politicians who are drunk with power and lust for a despotic, unchecked rule. They probably hate the court most of all.
That’s because the legal system has excelled in the one area where its mere existence is enough: in preserving our right to not be arrested in the middle of the night by an elected dictatorship’s political militia.
If that is what you want for Israelis or at least for those unable to flee to more civilized shores, then by all means support the judicial reforms.
The writer is the former Cairo-based Middle East editor and London-based Europe/Africa editor of the Associated Press. He served as the chairman of the Foreign Press Association in Jerusalem and is a managing partner of the New York-based communications firm Thunder11. Follow him at https://danperry.substack.com