There are lies that resonate with consciousness. For example, if we remove all criticism of the government, democracy will be strengthened. That is, dictatorial characteristics will actually strengthen democracy. For example, if we eliminate the judiciary we will strengthen the separation of powers. Except that there will no longer be separation and no authorities because the Knesset was deleted by the government anyway and now the court is expected to be deleted. Or the brilliance that the appointment of judges by politicians will increase public confidence in the courts. These are mind-blowing cynical lies in the “upside down” style.
And there are factual lies that if you repeat them long enough they become assimilated. For example, that the supreme judges appoint themselves and their friends. It used to be true, but the politicians changed it a long time ago. Justice Minister Daniel Friedman put a brake on the actual appointments to the Supreme Court (which were once a direct route to a permanent appointment); Minister Ayelet Shaked formed a majority in the committee to pass her appointments in all courts; And most importantly, Gideon Sa’ar, as a legislator, changed the law so that a majority of seven of the nine members of the committee is required for the appointment to the Supreme. This amendment forced the judges and politicians to reach agreements – and the results accordingly.
During the presidency of Aharon Barak – all the judges elected to the Supreme Court, with the exception of one (Edmund Levy), were among his preferred candidates. Since Friedman, Shaked and Tikon Sa’ar – the division in appointments between the judges and the politicians is more or less equal. Here are the ten most recent appointments: Yosef Elron, David Mintz, Yael Wilner, George Kara, Ofer Grosskopf, Alex Stein, Yehiel Kosher, Ruth Ronan, Gila Steinitz-Kanafi, Khaled Kabob. Can they be clearly labeled? Is it possible to tell if there are more liberals than conservatives?
Another lie related to the “dictatorship” of the High Court is the disappearance of its contribution to the protection of human rights, minorities and the weak. For example, rulings in favor of the ultra-orthodox or families cut off from electricity supply due to debt. And this is related to the next lie.
2. The ultra-orthodox and those with a low socioeconomic status are mostly among the majority that gave the current coalition the victory. Regarding the ultra-Orthodox, it is important to note that, as a general rule, they do not need the legal system – neither as a normative marker nor as a democratic gatekeeper. For that they have the Torah and the rabbis. They need the High Court against the tyranny of the majority. But when they are members of the tyranny coalition, their incentive is actually to eliminate the High Court – so that it does not threaten values and interests that are important to them such as budgets, conscription, conversion, kosher, equality for women and LGBT people, etc.
The democratic essence per se is not at the core of the importance of the ultra-orthodox community, and in many cases it is not wanted at all. That’s why they don’t have a hard problem with elimination. And at this point they are ignoring the possibility that they will return to the opposition, simply because it seems like a rather low probability scenario.
Regarding the periphery and the weakened populations: they traditionally vote for Netanyahu and Deri, even if the High Court of Justice rules in their favor until the end of time, and even if the government’s priorities are invested in the ultra-orthodox and the settlers long before the periphery. This time the situation is truly absurd, because the details of the reform were formulated at the Ba’al Haj Congregation Institute The extreme right-wing economic tyranny, which favors the rich and pays extremely little attention to well-being, compassion and the weak in general. It takes an extremely high degree of lying and cynicism to mobilize the poor periphery of Israel in favor of a legal plan devised by ecclesiastical experts inspired by American billionaires.
3. And now to the table that represents the “this is how it is in the world” lie. The table was prepared by experts in constitutional and international law from several law faculties: Prof. Yaniv Roznai and Dr. Adam Shanar (Reichman University), Prof. Eliav Lieblich (Talo University), Dr. Tamar Hostovsky (Ono Academic College) and Dr. Nadiv Mordechai (Israel Institute for Democracy).
1 Viewing the gallery
The title of the comparison is that “no democratic country has all the features proposed in Levin’s ‘reform'”. Therefore, it means “crushing Israeli democracy”. The table has branches and clarifications intended for accuracy. For example, we are told that there is also an escalation clause in Canada, but it is much milder than the one offered here. For example, constitutional rights are excluded from it. The parliament will not be able to re-enact a law that has been invalidated due to a substantial violation of human rights. Disqualification of a law by a majority of 80% of the judges as proposed by us? It exists in Chile (in El Salvador 100%), but these are not the democracies we want to resemble.
4. The world recognizes the appointment of judges by politicians, but alongside checks and balances. In the US, the appointment is political only when there is an identity between the president and the majority in the Senate. When the Senate is controlled by the opposition, negotiations are required. The Israeli proposal gives the government and the coalition a permanent automatic majority in the committee for selecting judges. Netanyahu and the other high-ranking defendants will be able to choose the judges who will hear them and their appeals.
The Dobbs ruling is another example of American diversity limiting even the Supreme Court. The dark Trumpist court removed the constitutional protection from abortions, but the liberal states allowed them in their laws. Israel will not have this protection – neither against a predatory law nor against a predatory ruling. By the way, in Canada too, the politicians choose the judges, but from a pool of candidates built by a professional system. In some provinces there is an obligation to appoint from among them, and in others it is a practice that is generally respected.
5. In Israel, Levin’s proposal completely negates the power of the court to annul a basic law. Indeed, there are countries where the court is prevented from annulling a constitution. But on the other hand, it is also more difficult for the parliament to enact a constitution. In Israel, a basic law can be enacted with a simple majority of two against one. And worse than that – the fundamental laws have become a political platform and have been fed into the needs of political regulation between fraudsters who do not believe each other. The exchange government law for example – instead of remaining in its proper place, a coalition agreement, it was enacted as a fundamental law.
This means that in the absence of brakes, the government will be able to enact any scumbag and the court will be prevented from annulling it because the title “fundamental law” will be emblazoned on it. Our basic laws are a disabled constitution. Basic values such as equality and freedom of speech were removed from the Basic Law: Human Dignity and Freedom because of a compromise with the religious parties. And they were established in Israeli democracy by the activist power of the Supreme Court since the days of judges Shimon Agrant (in the “Voice of the People” ruling) and Moshe Landoy who stated that “a government that takes upon itself the authority to determine what is good for the citizen to know, ends up determining what is good for the citizen to think; there is no great contradiction From this to real democracy.”
And this allows us to reveal, along the way, another lie. Levin said that he misses these giants of the law, before the Barak era. Does he miss their activism? Does he miss Landoi who took down the Alon Mora settlement because it was built on private land? These judges shaped the democratic freedoms and the independence of the judiciary, no less than Barak, and some say even more.
6. In Britain, we are told, the court has no power to overturn laws. There, the court declares in its judgment the incompatibility between an offensive law and the European Convention on Human Rights, to which many countries are subject. Of course not Israel. Such a statement by the British court has the meaning of invalidating a law, because of the political culture that amends the law according to the case law. Corrects, not overcomes. Israel is a country whose internal divisions are so severe that an independent judicial authority is required that can annul offensive legislation, whether from the right or the left. The set of proposals that land on us today is derived not only from the personal needs of the accused Netanyahu and the convicted Deri, but also from the confidence that Netanyahu and the right will rule forever. In no country would a government dare to trample all balances and brakes like this if it were not for its security that it would not return to the opposition.
The table has a religion-state section and it is important because of the close connection between religion and the state. In Britain, the king is the head of the church, but that is the end of the synergy there. The senior partners in our coalition are ultra-Orthodox who seek separation and settlers who seek annexation. These are two groups that each, in their own way, detest democracy. I do not believe that the majority of the people let the government shape the country in favor of these two partners. To design and expose it to the economic and security dangers that these two foreshadow, alongside the expected difficulties from the international system. And most importantly, the majority of the people do not want ultra-orthodox Judaism together with extreme religious Judaism to trample on democracy. That is why the importance of both a true separation of powers and an independent judicial system is increasing.
And what is happening in the world? The committee decided to request research on the subject from the Knesset’s Information and Research Center. In the attached table the subject does not appear, but the answer is clear: the real question is not the status of the advisor or the advice, but what are the mechanisms in each method for upholding the law. In Israel there is no factor other than legal advice which is also supervised by the High Court of Justice. As soon as each minister chooses his advisor, as soon as he can ignore his opinion and choose a private attorney to represent him, there will be chaos here. No governance, no rule of law.
As the representative of the legal advisor to the government, attorney Gil Limon, said at the hearing: “He who also writes the law, also decides for himself whether he upholds the law, also controls the selection of judges and is authorized to override their ruling when it is not to his liking – he is not actually subject to the law. In this situation, the government would not even be above the law. The government will be the law.”
Lemon was immediately hit with venomous attacks. The things only illustrated the abyss and the gaps. The chances of negotiation are slim. Netanyahu and Levin are determined to dismantle the declaration of independence, the justice system, and democracy. They are motivated by hatred and revenge based on false reasoning, and by the support of their ideological partner, the head of the Constitutional Committee, Attorney Simcha Rothman and his program “Zion in the judgment will die”.