As Israel’s Supreme Court weighs in on unity government, how much power should it have?

May 7, 2020 by Israel Kasnett - JNS.org
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In a landmark ruling, Israel’s Supreme Court rejected all petitions against Israeli Prime Minister Benjamin Netanyahu forming a new government while under indictment, and against the emergency unity government deal signed by Netanyahu and Blue and White leader Benny Gantz.

Israelis watch a Supreme Court session on petitions filed against the proposed government, outside the Knesset, April 3, 2020. Photo by Yonatan Sindel/Flash90

However, the court did leave open the possibility of intervening in future legislation concerning the unity deal that is currently being debated in the Knesset.

With much of Israel’s media focused on the recent court hearings, the current situation has brought to the forefront of ongoing debates about the role the court should play in Israeli democracy.

Despite the ruling in favour of the government, Gadi Taub, a senior lecturer at the School of Public Policy and the Department of Communications at the Hebrew University of Jerusalem, told JNS that the very fact the court accepted the appeal for discussion is “outrageous,” “mind-boggling” and an “amazing feat of audacity.”

“In agreeing to adjudicate this issue in the first place, the court is behaving as if it feels it needs to protect democracy from citizens,” he said.

“There is no judiciary in any proper democracy as powerful as Israel’s Supreme Court,” said Taub. “In its own opinion, there is no limit to its power; there is nothing it does not believe is judicable, and it has the last word on everything.”

While it’s true that Israel is faced with an unprecedented rotation deal that includes significant changes to Israel’s Basic Laws to accommodate the terms of the unity deal signed by Netanyahu and Gantz, the central question is whether it is up to Israel’s judicial or legislative branches to represent the will of the people. Israel’s left sees the Supreme Court as a bulwark against the right and a defender of democracy. The right sees this as another example of the tyranny of the courts and its effort to wrest away democracy from the people.

Taub pointed to a recent court ruling that overturned a legislative decision to ban illegal immigration as an example of the Supreme Court’s overreach.

“The court believes everything is judicable,” he said. “[Former Chief Justice] Aharon Barak thought everything was under his authority, and he would have made [former U.S. Chief Justice] John Marshall [widely considered the most important and influential Supreme Court justice in U.S. history and credited with establishing the U.S. Supreme Court’s role in federal government] look like a blushing virgin.”

Eleven judges are presiding over the court as it wrestles with two central issues. The first is whether or not a prime minister can be appointed or continue to rule while under indictment. (Attorney General Avichai Mandelblit has said that there is no legal obstacle to Netanyahu’s forming of a government.) The second deals with the coalition agreement between Netanyahu and Gantz, which involves changes to existing legislation.

‘Unity deal sets a precedent’

On Tuesday, the Likud and Blue and White parties both made a few concessions in the coalition agreement between them and agreed to include policy guidelines; to allow for more bills to be passed, and to allow for senior appointments to be made. Mandelblit told the Supreme Court later on Tuesday that in his opinion, there is no reason for it to intervene or disqualify the revised coalition unity deal.

“The Supreme Court is supported by a very liberal press that cheerleads it to rule in direct opposition to “Basic Law: Government,” which says explicitly that you cannot rule out a prime minister who is indicted until he is convicted and after the last appeal has been heard,” said Taub.

He added that the press, which is “overwhelmingly liberal,” has been “instrumental in shaping a very strange narrative in which we are being told that the essence of democracy is the protection of human and civil rights by the courts, and the elections are just a procedure of democracy.”

Shmuel Sandler, a professor of religion and politics at Israel’s Bar-Ilan University in Ramat Gan and a senior research associate at the Begin-Sadat Center for Strategic Studies, told JNS that he agreed this is a precedent-setting case.

“There are legitimate arguments since the unity deal sets a precedent,” he said.

Sandler pointed to a number of factors that make this situation complicated. First, he noted the tension between Israel’s right and left over how much power the judiciary should be allowed to have. Second, after three consecutive elections within the course of a year, there was the possibility of a fourth one, which added an additional level of urgency.

Third, all of these deliberations in court are linked to a political struggle between left and right, not to mention Netanyahu’s own legal troubles.

“Everything is interconnected,” said Sandler. “The Supreme Court is hesitant to create a precedent ruling because of all of the implications.”

According to Sandler, the current legal and political crisis taking place will be “a stepping stone for the study of the relationship between the judiciary and the government.”

Taub noted how Menachem Mautner, former dean of Tel Aviv University’s law faculty who identifies with Israel’s political left, wrote in his book, Law and the Culture of Israel, that since the left has largely been unable to win at the ballot since 1977, it has decided to entrench itself in the Supreme Court and increasingly hand it more powers.

The leftist approach, as he sees it, is to attack democracy “by moving political power from elected to appointed institutions—from the parliament to the court.”

Taub said that Israel needs “a strong Supreme Court,” and that if it overreaches its authority “it skews the balance of powers.”

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