Will Israeli democracy survive the court?

September 1, 2023 by Caroline Glick - JNS
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On Sept. 28, Israel’s Supreme Court is expected to rule in favour of a petition from the far-left Movement for Quality Government to overturn the Nov. 1, 2022 elections.

Caroline Glick

In January, MQG petitioned the Supreme Court asking the justices to ban newly sworn-in Israeli Prime Minister Benjamin Netanyahu from serving in office. MQG argued that, with all due respect to the 2.4 million Israelis who voted for Netanyahu, as a criminal defendant, Netanyahu is legally “incapacitated” from performing his duties in office and, therefore, the Supreme Court should order Attorney General Gali Baharav Miara to declare Netanyahu “incapacitated” and oust him from power.

MQG’s petition was ridiculous on its face. The Supreme Court ruled in an 11-0 judgment in March 2020 that Netanyahu may serve as prime minister while standing trial.

Israel’s Basic Law: The Government stipulates that a prime minister can only be compelled to leave office if he has been convicted of criminal charges, and even then, only after he has exhausted all appeals.

Until the MQG submitted its petition, the incapacitation clause of the law was understood to refer only to physical or mental incapacitation. Moreover, no law empowers the attorney general to deem the prime minister incapacitated. That power was vested in Israel’s elected leaders in the government and Knesset. All the same, the justices agreed to adjudicate the petition.

Baharav Miara also didn’t reject the notion that she has the power to oust the prime minister. Instead, the attorney general installed by the previous government and still acting on its behalf to paralyze the Netanyahu government claimed that Netanyahu cannot be deemed incapacitated so long as he upholds the conflict-of-interest agreement he signed upon entering office. Baharav Miara insisted the agreement bars Netanyahu from dealing with judicial reform. By implication, Baharav Miara intimated that the converse was also true.

Immediately after Baharav Miara expressed that position, Coalition Leader MK Ofir Katz (Likud), submitted a bill to amend Basic Law: The Government to explicitly prevent Baharav Miara from ousting Netanyahu from power and thus overturning the elections. Katz’s draft bill, which was passed in March, made explicit what until then had merely been understood: The prime minister may only be deemed incapacitated if he is physically or mentally incapable of continuing to fulfil his duties. The power to make such a determination lies not with the unelected attorney general but with Israel’s elected leaders—the government and the Knesset. The amended law stipulates that three-fourths of the government and two-thirds of the Knesset must support such a determination in order to oust the elected leader of the country from power.

While Katz’s bill made its way through the Knesset, Netanyahu studiously avoided all involvement in his government’s central effort on judicial reform. His absence left a leadership vacuum that arguably doomed the government’s first effort to pass its judicial reform agenda. Without Netanyahu at the helm, a handful of Likud MKs led by Defence Minister Yoav Gallant lost their nerve in the face of the Left’s riots and indicated that they would vote against judicial reform.

Immediately after the Knesset passed the amendment to the Basic Law, Netanyahu reasserted his leadership. His move played a significant role in the coalition’s successful passage of its first judicial reform bill in June.

For its part, MQG quickly submitted a new petition to the Supreme Court asking the justices to abrogate the amendment to Basic Law: The Government and empower Baharav Miara to oust Netanyahu.

If there was any doubt regarding Baharav Miara’s intentions, her reaction to the legislation’s passage dispelled them. Baharav Miara penned a letter to the Court supporting the abrogation of the amendment to the Basic Law. Her behaviour showed that if the Court abrogates the amendment, Baharav Miara will either oust Netanyahu by declaring him incapacitated or use her power to unseat him at any time to force Netanyahu to abandon his government’s judicial reform plans. Either way, Baharav Miara obviously plans to nullify the results of the Nov. 1 elections.

Here is the place to note that MQG’s petition has no legal basis. The Supreme Court has no legal authority to abrogate or change Basic Laws. Indeed, there is no law that permits the Supreme Court to abrogate regular laws.

In 1995, then-Supreme Court President Aharon Barak seized the power to overturn duly promulgated laws of the Knesset. Barak argued that the source of the Court’s authority was Basic Law: Human Dignity and Liberty from 1992. Barak proclaimed in that judgment that the Knesset is not merely a parliament, it is Israel’s “Constitutive Authority.”

Barak asserted that the Knesset’s Basic Laws are actually Israel’s constitution. Every Basic Law is part of that constitution. After inventing a constitution out of whole cloth, Barak declared that the Basic Laws are the source of the Supreme Court’s authority to abrogate laws that are not Basic Laws.

In order to empower Baharav Miara to overturn the elections by ousting Netanyahu from office, the justices now need to figure out how to assert the power to abrogate what they have long insisted is the source of their authority—the Basic Laws.

As he did with his 1995 judgment, this week Barak published an article in an online legal journal in which he provided what he argues is the basis for the Court’s new power to abrogate Basic Laws—that is, to abrogate what he himself proclaimed is the source of the Court’s authority.

Barak predicated his new constitutional hijinks on the introduction of Israel’s Declaration of Independence as the new “super-constitutional,” primordial source of all powers.

As Akiva Bigman noted in an analysis of Barak’s article published in Mida online magazine Wednesday, David Ben-Gurion and his colleagues who signed the Declaration of Independence on May 15, 1948, made clear that the document was political and declarative. Its purpose was to formalize Israel’s transition from colonial status under the British Mandatory government to a newly sovereign and independent state. It was not to determine the constitutional regime under which the new State of Israel would be governed. Notably, while the Declaration declared Israel a Jewish state, the word “democratic” never appeared in the text.

All the same, Barak wrote that the Declaration of Independence set out “the principles on which the expanse of the Knesset’s powers as the constitutive assembly must be interpreted.”

Barak wrote, “Our approach”—that is, the approach of the justices—is to view “the Declaration of Independence as the external source of the Basic Laws and, on its basis, limits can be placed on the expanse of the Knesset’s powers as the primary constitutive assembly.”

According to Barak, the Declaration’s aspirational proclamation, “The State of Israel will provide equal social and political rights to all its citizens without regard to religion, race or sex” is the super-constitutional basis for the Knesset’s constitutive powers. Supreme Court justices have the power to overturn or limit the Knesset’s constitutive powers if they decide that its Basic Laws undermine this declaration.

Barak dispensed with the fact that the Declaration makes no mention of democracy by proclaiming that the Supreme Court’s interpretation of the Declaration “has emphasized over and over Israel’s identity as a Jewish and democratic state.”

As Bigman showed, Barak then moved to the Basic Law: Human Dignity and Liberty. Barak himself wrote the law, which the Knesset passed with barely a quorum present in 1992. The law, which includes flowery language about rights and dignity, struck most lawmakers as nothing more than verbiage with no substantive implications. That is why barely anyone showed up to vote on it.

Barak had other plans. Beginning in 1992, he used that Basic Law as the basis of his judicial revolution, which saw the Supreme Court seizing the power to legislate and dictate policies from the bench while accepting no limits—aside from Basic Laws—on its powers.

In his article, Barak insisted that his Basic Law is no mere Basic Law.

“If the Declaration of Independence is the State of Israel’s ‘Birth Certificate’ … then its values as a Jewish and democratic state [as expressed in Basic Law: Human Dignity and Freedom] are its high school diploma. These two certificates determine the rules the Knesset as the primary constitutive authority is prohibited from deviating from.”

Barak then proclaimed that through its interpretation of the Declaration of Independence and Basic Law: Human Dignity and Liberty, the Court is empowered to abrogate Basic Laws. Indeed, “This is not only the Court’s right, it is its duty. The Court is not permitted to release itself from this obligation. The Court must not permit the People’s Will to turn into a dead letter,” Barak exhorted his disciples on the current Court.

Barak has long insisted that he and his disciples are the custodians of Israel’s “enlightened” values. Far from mere judges, they are Platonic Guardians. But how enlightened are they really?

Supreme Court President Esther Hayut is set to retire on Oct. 15. According to the Court’s “seniority rule” for selection of its presidents, Hayut’s successor is supposed to be Justice Yitzhak Amit. Last Friday, Maariv investigative reporter Kalman Liebskind reported that, in breach of Amit’s conflict of interest agreement, Amit has repeatedly adjudicated court cases involving Israel’s International Bank, of which his brother Dov Goldfreund is a director. He has also adjudicated a major case directly impacting Dor Alon Energy, of which his brother-in-law Israel Yaniv serves as chairman.

Amit’s behaviour bespeaks contempt for the ethical rules that apply to all public servants. Amit is not alone. Hayut was also found to have repeatedly adjudicated cases that involved insurance companies her husband represented. Barak himself has been credibly accused of exploiting his position during his tenure as Supreme Court president to advance his family’s financial interests.

In other words, the justices Barak insists are the guardians of the “People’s Will” believe the ethical standards politicians are held to don’t apply to them.

All the same, if everything goes as expected, in the coming weeks, acting on Barak’s new orders, these ethically challenged, self-selected men and women will seize what is left of the Knesset’s sovereign powers and empower an unelected attorney general hostile to Netanyahu and his government to effectively cancel the votes of 2.4 million Israelis by ousting Netanyahu from power.

How events will proceed is unknowable. Levin penned a letter to Baharav Miara Wednesday exposing her incompetence and failure to carry out any of her statutory duties. Many commentators speculated that his letter may form the basis of a government decision to fire her.

Also Wednesday, Associate Justice Yosef Elron stunned his colleagues by challenging the seniority rule by presenting himself as a candidate to succeed Hayut instead of Amit. These events or others that have yet to happen may shake Hayut’s belief in her own invincibility and force her and her colleagues to step away from the brink. Or things may go on as expected and she and her underlings may formally destroy the last vestiges of Israeli democracy.

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