In Netanyahu’s eyes the justice system is an enemy, not a pillar of democracy
Last Saturday, more than 130,000 Israelis poured onto the streets in cities across the country in an expression of anger directed against a government that is indefatigable in its determination to destroy the principle of checks and balances in Israeli society, and with it the nation’s democratic system.
James Madison, one of America’s Founding Fathers and co-author of “The Federalist Papers,” once remarked: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
Since neither of these conditions prevails in society, there remains a need for government. And in Israel, in the aftermath of last November’s general election, it is Prime Minister Benjamin Netanyahu and his coalition who need to be controlled, otherwise they will leave nothing but scorched earth where Israeli democracy once stood.
It is not only ordinary citizens who are waking up to the new realities of the Netanyahu government’s power-grabbing intentions, which are likely to compromise their liberties, fuel rampant corruption among those who rule them, result in abuses of the rights of minorities, and increasingly target Supreme Court judges, including their president, Esther Hayot, Attorney General Gali Baharav-Miara and other senior jurists.
This month, in a clear rebuff of the new government’s attempts to legitimize corruption and make a mockery of the criminal justice system, 10 of 11 Supreme Court judges ruled that Netanyahu’s decision to appoint Aryeh Deri, the leader of the ultra-Orthodox Sephardic political party Shas, as a minister displayed “extreme unreasonability.”
The term “extreme unreasonability” does not reflect even half the scale of the corrupt nature of this appointment. Only months before the election, Deri was convicted of tax offenses after pleading guilty as part of a plea bargain with prosecutors.
In exchange for his admission of guilt, an agreement to resign from the Knesset, and a promise never to return to public life, the prosecution showed him extreme (and naive) leniency by agreeing to a suspended sentence without a conviction for moral turpitude — only for him to return to front-line politics less than a year later.
Deri previously served 22 months in prison after he was convicted of taking bribes while serving as interior minister. That verdict did carry guilt of moral turpitude.
In other words, Deri is a persistent offender, a corrupt and greedy one, who has made a career of pretending to protect the less privileged in society while, first and foremost, lining the pockets of himself, his family and friends.
In what political system that prides itself on good governance and accountability would such a person be put in charge of important ministries that control huge budgets?
Moreover, the current Knesset, in another distasteful decision, swiftly changed a constitutional law so as to allow a person who has been convicted of a crime and given a suspended jail sentence to serve in government — after which Deri was promptly appointed.
Most of the Supreme Court judges found it to be unreasonable that an unreformed, corrupt politician should be in government. Others emphasized the fact that he had lied to escape a possible jail term.
What is genuinely frightening is that the present Israeli government includes both the sinister and the simple in abundance.
An appointment that was born in sin ended, at least for now, in complete ignominy not only for Deri but for the entire government and the person who heads it.
Considering that Deri is a key ally of Netanyahu and was handed two major ministries, health and the interior, the highest court in the country was sending the clear message that as long it is not disbanded by politicians, it intends to fully uphold the law and act reasonably — two notions that appear alien to this right-wing coalition government.
It is worth stating that opposition to the direction in which the current administration is going is not opposition to the basic principle of exploring constitutional reforms or reforming the courts. What is eminently objectionable, however, is an attempted constitutional coup by a group of corrupt politicians — led by Prime Minister Netanyahu, who himself is facing trial on three counts of corruption — who are asking to be handed the reins of absolute power.
The president of the Supreme Court deemed the current attack on the constitutional system to be a sufficient threat to democracy to merit a departure from the court’s tradition of not intervening in what might appear to be a political debate, and issue a warning that the government’s plan to radically overhaul Israel’s judiciary “will shatter the judicial system and is, in fact, an unrestrained attack” that would enable the Knesset to “override human rights.”
The court added that this plan “is meant to be a mortal wound to the independence of the judiciary, and to turn it into a silent institution.”
This was an unprecedented, but far from unfounded, intervention resulting not from some abstract fear of what the government might be planning, but based on what has already been proposed and carried out.
For example: An attempt to establish an override provision that would enable the Knesset to pass, by the slimmest of margins, legislation that had been invalidated by the court; taking away the court’s ability to apply a judgment based on “reasonable standard”; conferring on the government more power to make judicial appointments; and weakening the independence of legal advisers in government departments.
These are just a few examples of the new government’s ill-intentioned attacks on the justice system so far. Furthermore, it is suggested that the changes the governing coalition is pushing through the Knesset at a rapid pace are merely the prelude to a flood of legislation that will weaken the safeguards on human rights, shrink the spaces in which civil society operates, and remove the protections against arbitrary acts of government targeting individuals and organizations.
In a country as complex as Israel, where the very fabric of society is already so delicate, it is not hard to imagine that these so-called reforms are merely a license for abuse of power by authorities on both sides of the Green Line.
In broad terms, those on the right who are attempting this constitutional usurpation can be divided between the sinister and the simple. The sinister aspire to absolute power without scrutiny by the courts, while perpetuating their rule and restricting the human, political and civic rights of Israelis.
The simple-minded perceive the winning of elections as a license not only to govern but to change the very foundations of the liberal-democratic settlement to the extent that the very system that created it will be destroyed, without being capable of grasping the meaning of this.
What is genuinely frightening is that the present government includes both the sinister and the simple in abundance.
• Yossi Mekelberg is professor of international relations and an associate fellow of the MENA Program at Chatham House. He is a regular contributor to the international written and electronic media.