Yossi Mekelberg
Israel’s political situation is entering a phase that is both farcical and tragic. Next month, the Supreme Court, sitting as the High Court of Justice, which rules on the legality of decisions by state authorities, will convene to hear petitions on the law to abolish the reasonableness standard – a central element of the Netanyahu government’s plan to compromise the power of the country’s judiciary, which was approved last month by the Knesset.
Very sensibly, Supreme Court President Esther Hayut has announced that all 15 Supreme Court justices will decide on this case, which will present them with a “turkeys voting for Christmas” dilemma. They have to decide whether or not to approve the Knesset’s vote and, by doing so, leave themselves largely powerless in the face of a corrupt government. Whatever their decision, it will have serious consequences. It is the first time in this court’s history that all 15 justices will hear a petition, which tells us about the gravity Justice Hayut attaches to this issue and her court’s need to garner public support. It seems reasonable to suppose that the justices will send the bill back to the Knesset on the grounds that this is exactly why the reasonableness standard exists – to ensure that the government behaves reasonably and plausibly, not arbitrarily.
In the earliest days of the current coalition, this power in the hands of the highest court in the country proved its importance when the High Court of Justice disqualified Shas party chairman Aryeh Deri from taking the posts of both health minister and interior minister due to his convictions for tax evasion, corruption as a public official, bribery and fraud, not to mention his broken promise to quit politics as part of a plea bargain that possibly spared him a jail sentence. By preventing a persistent offender who had shown no shred of remorse from holding high office, the Supreme Court proved to be a bulwark of justice. It is this reasonableness standard that has spared the country, at least for now, from this crooked politician’s return to the Cabinet. It is not that most politicians do not understand what is reasonable and what is unreasonable, but that, on some occasions, although persistently in the case of the current Israeli government, they insist on having their way despite their actions being illegal, immoral and corrupt – all the hallmarks of bad governance – as long as their thirst for power, money and veneration is quenched. This is the definition of unreasonable behavior in a public office. And if there is no branch of government with the power to check this behavior, the path to authoritarianism and completely arbitrary governance is left wide open.
But it will not stop there. For, without the Reasonableness Act, who will block Benjamin Netanyahu from sacking Attorney General Gali Baharav-Miara after the prime minister’s closest political allies have put a target on her back for being “too independent” in upholding a law? The Cabinet will instead appoint one of their cronies who will allow nepotistic appointments, ones that serve the politicians but hardly the public. What should worry anyone who values Israel’s democracy – a liberal democracy that upholds the rule of law – is that the prime minister has so far refused to commit himself to respecting the High Court ruling should it decide to strike down the removal of the reasonableness standard. Netanyahu, being Netanyahu, is evasive and likes to use doublespeak in the spirit of George Orwell’s dystopian masterpiece “1984.”
His loyal sycophants, and those in his coalition who venomously hate the judiciary, especially the Supreme Court, are making no secret of their wish to weaken the highest court in the country. They audaciously claim that this is in the interests of the country, the democratic system and, above all, the people. Netanyahu and Justice Minister Yariv Levin, who know better and are therefore the true villains in this story, are in the full-on mode of deceiving their own supporters and inciting against those who oppose them. Israel’s prime minister is steering clear of his country’s press and TV and prefers to address the international media, particularly that of the US, because he believes he can better manipulate it. And, in any case, the audience there can have little to no impact on events in Israel. Many are unaware of the nuances of Israel’s checks and balances system, where there is only one elected chamber, and, due to its parliamentary system, the government enjoys the support of the majority in the legislature. Hence, the judiciary is the only true defender of the democratic system, with a tail wind from civil society and ordinary citizens.
In Netanyahu’s case, it is the dark cloud of his corruption trial that makes him a dangerous enemy of the judiciary, as there is an obvious conflict of interests when the defendant in a criminal case attempts to destroy the independence of the judiciary. Despite signing an agreement with previous Attorney General Avichai Mandelblit that requires him to avoid involvement in legislation that could affect the outcome of his trial, his fingerprints are all over the current judicial coup. Of course, he should have done the decent thing and suspended himself for the duration of his trial, but that is a very naive thought for anyone who has watched how Netanyahu has operated for the last 25 years. When the Supreme Court announces its decision next month, the battle lines between the government and the pro-democracy forces will become even clearer. For both sides, it might prove to be a hill to die on. If the justices were to refrain from striking down the legislation to make them subservient to the government, it would open the floodgates for corrupt and inappropriate appointments to senior positions throughout the civil service, including the police and the armed forces. And this would be followed by more legislation that would further weaken the judiciary and make it the government’s rubber stamp. If this happens, we can expect the protest movement to step up a gear, with a high likelihood of national strikes and more reservists refusing to volunteer for the military, while mass rallies across the country would gather momentum. But if the justices should strike down the removal of the reasonableness standard, Netanyahu’s poisonous regime would go full throttle on delegitimizing the court and the protesters. Whatever happens, you can expect one of the hottest autumns in Israel’s history – and one that will not be entirely due to global warming.
