Five days after Prime Minister Yitzhak Rabin’s assassination, as the public attention focused on the crime and funeral, the High Court of Justice issued a ruling on November 9, 1995. Three days later, another decision was issued. Both, almost overlooked at the time, generated Israel’s “constitutional revolution” as Justice Aharon Barak termed earlier in a May 1992 speech.
In that speech, Barak, not yet the court’s chief justice, announced his goal of establishing who would “give content to the Basic Laws’ avowed purpose of ‘entrenching in a Basic Law the values of the State of Israel as a Jewish democratic state.’” Those two laws, which had energized the new era of judicial activism, were legislated in March 1992 by then-justice minister Dan Meridor.
Meridor was then a Likud MK, son of an Irgun commander and formerly Menachem Begin’s cabinet secretary. Today, Meridor is no Likudnik, having switched parties in 1998, first to the Center and then further to the liberal Left. On July 24, in a Haaretz podcast, he commented on the clash between the government and judicial branches, opining that “we are close to the loss of our democracy.”
At a November 24 meeting of the Knesset’s Law, Constitution, and Justice Committee, Meridor was more forceful. Addressing the proposal to split the attorney-general’s roles, he said, “The judicial system, apart from its function of deciding disputes, is not subordinate to the majority, but works according to the fundamental democratic values of the state.”
Of course, those very same concerns worry supporters of the judicial reform program. They sense the court has arrogated for itself the right to supersede legal norms independently, as well as proactively shaping Israeli law. Moreover, it granted itself that power. Instead of a decision constitutionally agreed upon, the court has set Israel on a course of becoming a juristocracy, a state governed by judges. That there is no constitution is another matter.
However, as Isaac Amit, the current chief justice, discovered, being a ruler invites protest. Recent High Court sittings reflect Kaplan and Balfour Street antics. What is galvanizing the disruptive behavior of MKs and ordinary citizens is not only judicial reform or the trial of Prime Minister Benjamin Netanyahu, although both those issues provide consternation at the workings of Lady Justice.
Police and prosecution confuse the narrative
For those following the trial, what is alarming is the police and prosecution witnesses who have contradicted the prosecution’s own narrative from within and who were declared hostile by the state’s attorneys. Observers are being convinced that there really is a “they’re out to get him” conspiracy.
Indeed, other “affairs” have developed recently. The dismissed military advocate-general is suspected of criminal behavior in the Sde Teiman case. There is a possible collusion between the attorney-general and the advocate-general. A former attorney-general did not authorize Netanyahu’s initial investigation properly. A former police investigator refuted the amounts of cigars and Champagne supposedly gifted to Netanyahu as “evidence” of bribery.
And there are more examples.
At the core of the clash, as Meridor indicated, is who gets to define and even create the “values” that both sides seek to uphold. Is it a constitutional convention as in the United States?
Tradition, as in the UK? Or is it the Torah and Talmud as the haredi (ultra-Orthodox) parties would demand?
The clash came to a head in recent remarks by the retired Barak. They provide an insight into why a section of the population is fearful of judicial despotism and wary when unelected officials who are not subject to the people’s will dominate the affairs of state. In doing so, they appear to dictate a new ‘law’ by reading into laws rather than interpreting them.
At a December 4 conference on public law and democracy, Barak expressed disdain at claims of a “deep state.” He viewed the relationship between the political echelon and the security bodies as “distorted” and that the prime minister is “taking over” the government.
He said, “I think we are no longer citizens, but subjects.” To his mind, Israel is reaching “the bottom [of a slide], becoming an authoritarian regime,” and added, “We are no longer a country whose values are Jewish and democratic.”
His last words touched on the dividing rift of who gets to decide “values.” Who decides what is “democratic” and what is or isn’t “Jewish”? What institution is truly supreme?
Arguments over judicial overreach and activism have been ongoing for years. Critics of Barak’s philosophy and subsequent court rulings see the justices engaged in legislating without lawful consultation with the other government branches. They make decisions based solely on the judges’ own discretion. They create benchmarks that override existing criteria authorized without regard to accepted procedures.
Justice Minister Yariv Levin publicly accused Amit of placing himself and his colleagues above the law. He noted the Pegasus spyware committee, whose deliberations have been stymied, as well as the delays in the military advocate general’s investigation.
He declared justices occupy a “fortress of lies” and he intended on “rebuilding the judicial system as it was under chief justices such as [Meir] Shamgar and [Moshe] Landau.”
This criticism of the court’s workings is not simply an ideological political attack or one intended to overthrow democracy. The desire is to reform and rein in an elitist approach that has run wild.
One that is even becoming a form of a benevolent dictatorship.
In this contest, can both sides achieve victory, or will the state lose?
The writer is a researcher, analyst, and commentator on political, cultural, and media issues.