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OpEds

Nothing less than Israel’s democracy is at stake

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Appearances can be deceptive. Beneath new Justice Minister Yariv Levin’s guise of respectability and his soft-spoken manner, is the heart of a radical and fanatical ideologue. And yet, his plan to “reform” Israel’s judicial system is so cold, so dispassionate and calculated, with an attention to detail so precise, to make sure that every avenue of recourse is blocked and locked up tight, that it’s reminiscent of the precision of a murky regime from our tormented past.

The time has come to rip the façade away from the laundered euphemisms this government uses to mislead the public to give its diabolical agenda a false impression of virtuous propriety. Let’s be honest, what Levin wants to do to the judicial system is to ravage it, not reform it.

His proposed “reform” is so radical, it will eviscerate the authority of the court and turn it into an institution devoid of any true power, indentured to the legislature and those that control it.

As for the false pretence of wanting to “redress the imbalance of power” between the different arms of government? Let’s call it what it really is: Orwellian doublespeak.

This coalition (now government) has no qualms with tampering with the country’s criminal laws and our penal code to ram through an amendment to the law, just so that one man, a twice-convicted felon for bribery, fraud, and tax evasion, can be made a cabinet minister as a precondition to joining the government.

This coalition doesn’t have the right to claim that the motivation for the upheaval of our entire judicial system is civic concern for the health of our democracy and the balance of powers between the arms of government. It’s not only an affront to our intelligence, it’s a fetid lie.

Here are the four changes and what they mean for Israel’s democracy:

The Override Clause

The Override Clause will give the Knesset the ability to overturn Supreme Court decisions with a simple majority of 61. In actuality, the Supreme Court has seldom overstepped the bounds of its authority. In the past 27 years, the Supreme Court has struck down 22 laws – and in most cases one clause in those 22 laws. It did not even strike down the Nation-State Law, which creates in-built inequality among citizens and, as a basic quasi-constitutional law, is the cornerstone for future legislation that could turn Israel into an apartheid-like state.

No, what irks the parties in this far-right government, isn’t the court’s invalidation of legislation, but its decisions regarding petitions about government decisions and policies, and the legality of illegally constructed settlements. Or, about the rights of refugees and asylum seekers, thwarting the government’s heartless – if not blatantly cruel – treatment to discourage illegal immigration.

Saying that court decisions should reflect the “will of the people” and the will of those elected, is cheap populist misrepresentation. Seeking to delegitimise the decisions of the court by saying that they aren’t elected and therefore have no right to make decisions that don’t reflect the “will of the people” displays a blatant disregard – if not misunderstanding – of the role of the judiciary in a democracy. The job of the courts is to uphold the law as they interpret it, not the will of the people.

Cancelling the standard of reasonableness

While everyone is up in arms about the Override Clause, the cancellation of the standard of reasonableness almost flew under the radar. The reasonableness standard is the cornerstone of litigation and jurisprudence in most Western democracies. Cancelling this standard removes us from the community of Western democracies, and skews the legal system even more in favour of those in power. In Israel, it’s the basis upon which citizens, human rights organisations, and other organisations can question the legality of government decisions and policies in court.

By cancelling this standard, Levin essentially deprives all these organisations of legal standing, which means that they have no legal basis upon which to appeal to the Supreme Court for recourse. How convenient! Without the hindrance of appeals to the Supreme Court, the government can basically do whatever it wants, trample on the rights of others – whether it be in the West Bank or inside Israel – and no-one can stand in its way. Legal recourse to the courts against government overbearance is a basic democratic right.

Changing the composition of the committee for the selection of justices

As insidious as cancelling the standard of reasonableness is, changing the committee that selects our judges trumps that by politicising the courts to the point where their integrity is brought into question. Today, the balance of the committee that selects our judges ensures a difficult but fair process. The justice minister presides over the committee and sets the agenda. Levin wants to replace the representatives of the Bar Association with “members of the public”. In other words, representatives convenient to the government. That’s like asking passengers on a bus to decide who’s qualified to be a bus driver! It paves the way for the political appointment of judges. This not only impugns the integrity of our judicial system and undermines the integrity of the court and its decisions, the judges appointed would be beholden to those who appointed them, making the court a political arena, not a haven for justice.

Making the appointment of ministerial legal advisors a position of political trust

Up until now, legal advisors in government ministries were answerable to the attorney general. This “amendment” would make the appointment of ministerial legal advisors answerable to the ministers, not the attorney general. That means that the position, which until now has been a position of propriety, an objective, democratic safeguard against ministerial overreach, is now considered a “position of trust”. In other words, the legal advisor would be indebted to the minister who appointed him or her. Who is going to be able to stand up to the minister who appointed him/her and object to any measures the minister decided to implement? Yet another democratic safeguard will be removed, giving ministers virtual carte blanche to do whatever they please.

To all those who dismiss our concerns that this government is dismantling our democracy and fundamentally changing the nature of our country, I ask, at what price the ability to govern? At the price of our democracy?

  • Zimbabwean-born Paul Mirbach moved to Cape Town at 16, and matriculated at Herzlia School. In 1982, he made aliya with his Habonim garin to Kibbutz Tuval, which was then a new kibbutz he helped build. He served in the Israel Defense Forces, participating in the first Lebanon War.

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11 Comments

11 Comments

  1. Daniella Jaff-Klein

    January 12, 2023 at 12:17 pm

    Such an important article, and so important to call out this “new government” for what it really is.
    Thank you for publishing this

  2. Julian

    January 12, 2023 at 2:43 pm

    Please do spare us your wailing and gnashing of teeth. It’s interesting how Israel’s democracy is only in danger when the rightoids have power. Where were you when the Joint Arab List had significant representation?

  3. Paul Liptz

    January 12, 2023 at 3:05 pm

    After almost 56 years in Israel, this is the first time that I feel that our fragile democracy is in danger.In addition,racism is on the rise, the police are being encouraged to act against the opposition and it seems that the radical right is ignoring all the rules of civilized behaviour.A Palestinian who was injured while working in Israel was refused medical attention by the national health scheme and statements by government members are a real threat.How disappointed Menachem Begin would have been.

  4. Paul Mirbach

    January 12, 2023 at 5:33 pm

    Oh Julian, please continue displaying to us all your lack of understanding and comprehension skills. So, I understand that you don’t like Arabs very much, do you? But what I do see, is that your actual knowledge regarding the Arab parties is based on demonization, demagoguery and disinformation. Do you want to know where I was when the Joint List had significant representation? In case you forgot, Israeli Arabs are citizens with the right to vote. They have as much right for their voice also to be represented. Maybe in your “democracy” you would like to deprive them of their right to vote? Come on, tell us all about your “democracy”. Where were YOU when Netanyahu courted Mansour Abbas, I wonder?

    I have lived in Israel for 41 years. At least 30 of those years have been under a Likud led coalition. (They’re “the Right”, by the way). Although I did not like the government, no other government before this one threatened to dismantle the institutions of our democracy and to dominate the judiciary.

  5. Paul Liptz

    January 12, 2023 at 7:51 pm

    Julian,You apparently don’t understand the difference between the Joint List which had almost no political power and the parties which make up the present government.

  6. Julian

    January 12, 2023 at 10:57 pm

    Thanks for proving my point!

  7. JULIAN ALSO

    January 13, 2023 at 9:25 am

    Fits that a apologist for democracy, born in Rhodesia and alive long enough to see its failings, should become a poisonous purveyor of panic regarding everything “right wing authoritarianism”.
    1)Israeli democracy has always been a myth. You can’t have a “Jewish democratic state”. Pick a poison. You can’t have two.
    2)The right, globally, has become the only voice for reasoned governance and libertarian principles. Stop trying to paint every heterodox viewpoint as authoritarian, you self righteous, proselytising, egg-head.

  8. Choni Davidowitz

    January 13, 2023 at 10:48 am

    Democracy, “shmeocracy” Since this new government has come into power terror attacks have all but ceased. Human rights are now truly protected. The right to live in your own country without the threat of savage terrorists. Nothing matters except the security of the Jewish people in their own land. This “racist” government is the first and only government in 75 years that will protect the lives of it’s citizens effectively. Nothing else matters. PERIOD.

  9. Shimoin Z. Klein

    January 14, 2023 at 7:57 pm

    An excellent article that explains the confusing “legalese” accurately. Israel is moving in a dangerous direction by politicizing the Courts and dispensing justice according to the party lines of the evil, homophobic, fascist government in power that is shooting holes in Israel’s present faulty democracy. The courts will be subservient to the present evil, right-wing government that Paul Mirbach accurately describes. The solution does not lie with the Israeli electorate, as there is a move to destroy the left and possibly the centre opposition. Demonstrations will not change the government. Apartheid SA ended by boycotting SA sports as starters followed by boycotting South Africa economically brought the end to apartheid. When Israel is harmed by boycotts, sanctions and divestment, democracy and an end to the occupation of Palestinian lands will end and a two-state solution will be negotiated. If Israel is hit economically and things go bad for the Israeli citizen, then the evil, messianic, religious, racist, homophobic Netanyahu Government will lose support and disintegrate. I never supported BDS in the past. It may be the beginning of the end of fascism in Israel, which is now on the increase. Maybe the right-wing extremists of the Itamar Ben Gvir-Betzalel Smotrich types and Likudniks and their gangster shenanigans will encourage antisemitism. The attitude towards destructive, racist changes against a country moving towards fascism logically encourages antisemitism. Discrimination against Reform and Conservative Jews and hatred expressed towards them by the corrupt, self-righteous orthodox rabbinical bigots, as well as the non-recognition of pluralism in Judaism. The fear of assimilation of the Jewish people is paranoia! It will result in the selection of Jews under the Law of Return. The direction Israel is moving is homophobic. It is developing into fascism and apartheid that is racist and homophobic – certainly not according to halacha. I don’t think that reasonable Israelis will “put it down to antisemitism”. What the Israeli Government is doing is creating antisemitism, creating hatred of the stranger, and those who do not tow the Netanyahu—Ben Gvir—Smotrich line. They may consider themselves Jews but lack Judaism’s teachings of welcoming the stranger, the Jewish heart and soul. They have forgotten generations of suffering. Furthermore, they have forgotten what it is to be a Jew. Even the political rabbinical leaders, who are chief rabbis and those in the Haredi political parties, are corrupt and parasitic. If there is no bread, there is no Torah!(https://www.myjewishlearning.com/…/no-food-no-torah-no…/) Ignorance because of not receiving a proper education in maths, sciences, and English and only religious subjects will ensure that they remain parasites and eat the taxpayer’s money. They are NOT JEWS IN SPIRIT, but rather JUDAIC MUTANTS.

  10. Shimon Z. Klein

    January 15, 2023 at 10:23 am

    Shimon Z. Klein
    Paul Mirbach, Maybe the right-wing extremists of the Itamar Ben Gvir-Betzalel Smotrich types and Likudniks and their gangster shenanigans will encourage antisemitism. The attitude towards destructive, racist changes against a country moving towards fascism logically encourages antisemitism. Discrimination against Reform and Conservative Jews and hatred expressed towards them by the corrupt, self-righteous orthodox rabbinical bigots, as well as the non-recognition of pluralism in Judaism. The fear of assimilation of the Jewish people is paranoia! It will result in the selection of Jews under the Law of Return. The direction Israel is moving is homophobic. It is developing into fascism and apartheid that is racist and homophobic—certainly not according to halacha. I don’t think that reasonable Israelis will “put it down to antisemitism”. What the Israeli Government is doing is creating antisemitism, creating hatred of the stranger, and those who do not tow the Netanyahu—Ben Gvir—Smotrich line. They may consider themselves Jews but lack Judaism’s teachings of welcoming the stranger, the Jewish heart and soul. They have forgotten generations of suffering. Furthermore, they have forgotten what it is to be a Jew. Even the political rabbinical leaders, who are chief rabbis and those in the Haredi political parties, are corrupt and parasitic. If there is no bread, there is no Torah!(https://www.myjewishlearning.com/…/no-food-no-torah-no…/) Ignorance because of not receiving a proper education in maths, sciences, and English and only religious subjects will ensure that they remain parasites and eat the taxpayer’s money. They are NOT JEWS IN SPIRIT, but rather JUDAIC MUTANTS.

  11. Bill Rider

    January 18, 2023 at 12:29 pm

    No Democracy can be destroyed in a week. The reality many try to deny is that Israel has never been a ‘proper’ Democracy; not even a ‘conditional democracy’ as it is now called.

    There is no constitution and the Basic Laws can be changed to a simple majority. Compare that to changing the Constitution in the USA.

    There has been a state of emergency in place since 1948.

    Equality is never mentioned in any basic law. Democracy is never mentioned in the Declaration of Indepemdence.

    I assume you there is not even One Man One Vote.

    The sooner we’re realise these are just steps along the well worn undemocratic path the better

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