Judicial Reforms In Israel And The History: How Did We Get Here – Analysis
In November 2019, Netanyahu was charged with corruption and accepting bribes after 3 years of investigation. While on trial over criminal charges, he cannot interfere with the function of the Judiciary as decreed by the “Conflict of Interest Agreement” and the Supreme Court can hold him in contempt over this.
Attorney General, Avichai Mandelblit investigated the case against Netanyahu and found that he accepted gifts from millionaires and gave excessive favours to media outlets to gain favorable coverage. That drastically reduced the popularity Netanyahu enjoyed. But the history we just narrated, gives us an idea as to why Netanyahu wants judicial reforms curbing the accountability powers of the Judiciary.
Netanyahu was said to agree to a plea bargain to end the corruption charges in January, 2021. However, he wanted to be spared a conviction carrying “moral turpitude” clause – which under Israeli law means that you accept yourself to be morally corrupted and recede from or quit politics for years which the judiciary denied him. Thus, the independence of Judiciary has been a thorn in his side. After Netanyahu was removed from power in 2019, he regained it in 2022 through a coalition of far right groups and his own Likud party. The reason he won is that the coalition is the most conservative and extremist in nature in the history of Israel targeting palestinians for gaining an edge and creating a vote bank. Soon after he took to power, his Justice Minister announced a bill to bring changes in the Judicial Branch of the government, most likely to escape corruption charges and to continue his political rule for the upcoming terms. Although the Attorny General has remarked the move illegal by a man already on trial in the SC.
The Proposed Judicial Reforms
- Under the new law, a 7-member appointments committee will be formed to select judges for the Supreme Court. The committee will be composed of government officials, members of the bar association, and Supreme Court judges.Critics of the law argue that it gives the government too much power over the judiciary and could result in the appointment of less qualified judges. Supporters of the law argue that it increases transparency and accountability in the judicial appointment process.
- The government has been pushing for changes that would limit the Supreme Court’s powers to rule against the legislature and the executive, giving the Israeli parliament (the Knesset) the power to override Supreme Court decisions with a simple majority of 61 votes out of the 120-seat Knesset.
- The third proposal takes away the Supreme Court’s authority to review the legality of Israel’s Basic Laws, which function as the country’s constitution. Protesters fear the legal reforms may diminish the checks and balances within the Israeli state.
Support of the Zionists and Ultra Orthodox Jews in favour of the Law
They want their community to be exempted from the mandatory conscription in military which may be struck down by the Court if it retains its powers to reject a legislation by the zionist dominated parliament. They have started a propaganda by publishing articles on their forum “The Religious Zionist Party led by Bezalel Smotrich”. They published:
Through the years, the left has systematically gained control of non-elected government centers of power, injected them with its jargon and worldview and transformed them into the center-of-gravity for decision-making. Effectively, this process has shackled the right, making it impossible to initiate and implement strategic change in a governmental system undemocratically controlled by the left and a host of “professional committees” that are faithful to a leftist agenda and not accountable to the public.
The article demanded the following changes:
1. The Attorney General is a non-elected governmental authority with unlimited power and a built-in conflict of interests. “All power tends to corrupt, absolute power corrupts absolutely”. Concentrating too much power in the hands of one individual will ultimately lead to a misuse of power. The Attorney General provides legal advice and legal representation in Court to the government. The Attorney General might act on his own accord and reject government’s proposals in the court making it weak. Moreover, since he bears responsibility for indicting senior governmental officials, the Attorney General can easily pursue punitive measures against government officials who do not “fall in line”. – This clearly directs our attention to the fact that it was the Attorney General who investigated against Netanyahu and also indicted him in the court and thus became a subject of criticism by the Zionists.
2. The next problem is “Excessive Judicial Activism.”The State of Israel has experienced an ever-increasing imbalance of power between the judicial branch of government (Supreme Court) and the executive branch of government (Knesset).
Though the judicial branch of government is meant to keep the executive branch in check and ensure justice, over the years this delicate balance has been eroded by excessive judicial activism that de facto imposes a judge’s personal politics and agendas on the entire system, robbing the executive branch of its democratically endowed power.Supreme Court justices protect their ranks and the judges who serve in this all-important branch of government do not reflect the will of the people. – It signifies how important it is for Netanyahu to overhaul the judiciary as it explicitly states that the independence of the Judiciary is infact a problem that needs to be addressed through interference by public bodies which is also important to create a narrative among people in order to pass the legislation striking down the powers of the Judiciary.
3. The third problem is the “Separation of Powers” (which in itself is a pillar of democracy and Israel claims itself to be one). If the Attorney General or judiciary are not pleased with the personal choices or politics of a public official, they can easily fabricate charges against him to stop him in his tracks. The ever-present threat of indictment casts a shadow on the entire institution of democracy and limits the authority of democratically elected officials to implement their policies.Do away with the principle of “Breach of Trust” from the penal code. In recent years, this principle has been abstracted to mean just about anything that the courts do not approve of and provides the legal basis for indicting public officials for a host of behaviors which do not really comprise a breach of trust at all. Restore parliamentary immunity for members of Knesset.Legislate the “Impeachment Law” which will prevent the police from investigating a serving Prime Minister or other government minister for offenses committed in the context of their job that were not severe and did not harm public interests. This law ensures that charges can be brought against public officials only via impeachment. The law seeks to protect the democratic process and prevent the government from coming to a standstill as the official is under investigation and trial. The goal of the law is to mitigate the potential damage to the entire governmental system caused by unnecessary, possibly politically motivated, investigations. – It is to be remembered that Netanyahu was charged under the “Breach of Trust” clause and the article calls for no investigation of the serving official as Netanyahu was indicted while he was the Prime Minister. The article denounces Separation of Powers and want all the power to be invested in the executive in the garb of public representation and opinion that signifies democracy. A marvellous sleight of hand.
The fact that such an article was published means that Netanyahu is still sponsoring media outlets further exacerbating the charges. But as he moves to weaken the judiciary, he is adamant on building a narrative against it first.
Breaking of Ranks in the Army as a Result of the Reforms and the Dismissal of the Defence Minister
Netanyahu is in megalomania right now and does not care about the security and integration of the country but his safeguards in politics alone. His Defence Minister condemned the reforms and warned that it is causing panic and divisions among the rank and file of the army which is the source of our strength and it is being eroded.
Discontent has even surged from within Israel’s army – the most popular and respected institution among Israel’s Jewish majority. A growing number of Israeli reservists, including fighter pilots, have threatened to withdraw from voluntary duty in the past weeks. Netanyahu later on dismissed him forgetting that its own ally USA relies on its strong military and unity within to conduct operations against Iran and other militant outfits in the Middle East and has deep ties with Mossad.
America’s Position on Judicial Reforms in Israel
Leaders of Israel’s vibrant high-tech industry have said the changes will scare away investors; former top security officials have spoken out against the plan; and key allies, including the United States and Germany, have also voiced concerns. Biden has showed concerns over the reforms as it will affect America’s position on democracy and will raise questions over its invasions of the countries for the restoration of democracy. Democracy is the main cry of USA that it utilises to sanction and strangle the countries it deems detrimental to its interests. direct criticism from Biden will boost already growing scepticism – especially amongst Democrats of the idea that the close US-Israel relationship is based on “shared values” of democracy and freedom.This is the latest step in exposing that idea of shared values as a foundational myth of the relationship, which like so many foundational myths, once people realise it’s not true, they begin to entirely re-evaluate their positions towards these issues.
Biden warned the Israeli prime minister on Tuesday that his government “cannot continue down this road”. Netanyahu hit back in a public statement, saying Israel is a sovereign country that makes its own decisions. Biden, a self-proclaimed Zionist, has pushed for unconditional US support for Israel throughout his decades-long political career, despite pledging to centre human rights in his foreign policy as president. Israel, accused of imposing apartheid on Palestinians by major human rights organisations, including Amnesty International, receives at least $3.8bn in US military aid annually. Such an open sharp criticism by Biden might raise questions over the relations between the two as the senators has started putting pressure on Biden on cutting off military supplies to Israel. The judicial reforms not only affect Israel’s people but also the US-Israel axis in the Middle East.
Where are Palestinians in the Equation?
Such an open criticism by Biden can and is opening debate about the Israel’s treatment of Palestinians. As the democracy in the state is being questioned more than before after it became an internal issue of the Jewish state. If this actually is important to the US-Israel relationship, it needs to be clear that there are no shared values without freedom for Palestinians and equality for Palestinians, and true democracy includes Palestinians. Thus, Palestinians can push in the debate about the actual nature of democracy and create a cascade of debate among the US public about the atrocities committed against them. Although the judicial reforms don’t change much for them. The judiciary in the past has been ruling against the interests of Palestinians through land acts that give Jews the access to the territory of Palestine.
Settlements, which are considered illegal under international laws, have continued under successive Israeli governments. Nearly 600,000-750,000 Israelis now live in illegal settlements in the occupied West Bank and East Jerusalem.Palestinians however, say the discriminatory laws against them continue to be passed. Israel passed a new law that will make it easier for authorities to revoke the citizenship and residency of Palestinians in Israel and occupied East Jerusalem. Thus the discourse on judicial reforms combined with Palestinian activism can create a discourse to make the judicial process, accountability and justice inclusive of Palestinians and serve their interests in legal manner that will truly reflect democracy. Maybe now the world will see that Israel is not a Democratic state after it failed to see it for years when it refused to give representation to the Palestinians.
Condemnation by the United Nations
After widespread protests erupted in Israel, United Nations condemned the reforms and showed its concerns that it will negatively impact the human rights and freedom and will allow human rights violations by authorities go unchecked. It is to be noted that the protests are still ongoing in Israel.
Montesquieu and the Separation of Powers – Analysis
Democracies can be corrupted in two ways: by what French philosopher Montesquieu calls “the spirit of inequality” and “the spirit of extreme equality”. The spirit of inequality arises when citizens no longer identify their interests with the interests of their country, and therefore seek both to advance their own private interests at the expense of their fellow citizens, and to acquire political power over them. The spirit of extreme equality arises when the people are no longer content to be equal as citizens, but want to be equal in every respect. When the spirit of extreme equality takes root, however, the citizens neither respect nor obey any magistrate. They “want to manage everything themselves, to debate for the senate, to execute for the magistrate, and to decide for the judges”. Eventually the government will cease to function, the last remnants of virtue will disappear, and democracy will be replaced by despotism.
In Israel, we see the “Spirit of Inequality” on behalf of the government as it is willing to advance its interests at the expense of the human rights of its citizens and the independence of Judiciary undermining the system of democracy which according to Montesquieu leads to despotism. Thus, after the reforms, philosophically, Israel will cease to be a democracy. Also, Netanyahu wants to manage everything by himself. He wants to be the executive, the legislature and the judiciary which falls into the second category by Montesquieu. A threat to democracy.
Another principle of Montesquieu is “Separation of Powers” according to which a democracy can only effectively function if the 3 branches of the government have powers divided between them. The legislature, the executive and the judiciary. In order to maintain the “Check and Balance” in the system so that no power overrides another and the democracy may not turn to an autocracy. The independence of the Judiciary is the main pillar of it and Netanyahu aims to make executive the most powerful branch of government as planned out in the Zionist Party article eroding check and balance receding from the definition of democracy.
Montesquieu is considered the herald of democracy in the Western Philosophy and Politics. By diamterical opposition to it and if the Western powers stay silent, Israel and the West are demolishing the very foundational elements of their governance and thus making th them vulnerable to radical opportunism.
Analysis Using ‘From Dictatorship to Democracy’ by Gene Sharp
As quoted from the book, “Three of the most important factors in determining to what degree a government’s power will be controlled or uncontrolled therefore are: (1) the relative desire of the populace to impose limits on the government’s power; (2) the relative strength of the subjects’ independent organizations and institutions to withdraw collectively the sources of power; and (3) the population’s relative ability to withhold their consent and assistance.”
As we see today, Israel’s public is demonstrating loud and hard against the measure of the government and various ministers and parties are condemning the act. The country’s main labour union, the Histadrut, announced they would enforce a general strike and bring the country to a complete halt if the PM did not withdraw his plan. Israeli President Isaac Herzog called on Netanyahu to stop the plan. “For the sake of the unity of the people of Israel, for the sake of responsibility, I call on you to stop the legislative process immediately”. In this way the second point by the author puts into effect as the institutions withdraw the sources of power available to the autocrat. And the fact that public is asking for the removal of Netanyahu shows that no public assistance is available to him as delineated in the third point. This aligns with what Gene Sharp describes and his idea of resistance against such a regime. The criteria is achieved and thus the forced legislation seems difficult for Netanyahu to impose.
(2) “Resistance, not negotiations, is essential for change in conflicts where fundamental issues are at stake. In nearly all cases, resistance must continue to drive dictators out of power. Success is most often determined not by negotiating a settlement but through the wise use of the most appropriate and powerful means of resistance available. It is our contention, to be explored later in more detail, that political defiance, or nonviolent struggle, is the most powerful means available to those struggling for freedom.”
The public is showing constant resistance to the legislation as they’re afraid of the violation of their freedom to exercise civil liberties. What is on display is “Political Defiance” that has drawn public into the political debate and movement making Netanyahu nothing less than a “Dictator”.
In a recent development, a petition has been filed against the law passed in March that protects Netanyahu from removal. It was moved by “The Movement for Quality Government in Israel” that believes Israel is transitioning to a dictatorship. The public opinion is that the judicial system is the last check on the government as Israel doesn’t have a formal Constitution but just Basic Laws.
References:
The information is taken from Al Jazeera, Reuters, “From Dictatorship to Democracy” by Gene Sharp, Montesquieu’s philosophy and an article by “The Religious Zionist Party led by Bezalel Smotrich” .
