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The Struggle for the Soul of Israel’s Democracy

16 May 2019

This week, we learned more about the meaning of Prime Minister Benjamin Netanyahu’s victory in last month’s election. As so many of us feared and suspected, it is now clear that Netanyahu called these elections in large part to protect himself from the criminal indictments the attorney general has recommended be leveled against him. And now the prime minister appears willing to undermine the very institutions of Israeli democracy to avoid justice. Target number one is Israel’s independent judiciary.

The basic deal that will form the basis of this next government appears to be the passage of an immunity law tailored to the prime minister himself, as he faces charges of corruption, fraud and breach of public trust. Such a law, which would face an inevitable challenge at Israel’s High Court of Justice, comes with an insurance policy: the infamous ‘override clause,’ designed to take away the Court’s powers of judicial review over the decisions of the government and legislation passed by Knesset. This far-reaching change would render the Court’s rulings merely suggestions, rather than as carrying the force of law.

As is the case here in the US, the High Court’s power of judicial review serves as a check against the most unreasonable overreaches of the other branches. The Court acts to restrain government overreach and safeguard – and indeed expand – human rights and personal liberty. Unsurprisingly, the far-right has long railed against the Court’s independence, which has served to undergird and safeguard individual rights in Israel.

It appears that the bargain underpinning the next coalition government between Netanyahu’s Likud and the other right wing parties is immunity for Netanyahu in exchange for annexation of (at least some) West Bank settlements and an effort to circumscribe the independence of the High Court of Justice. The deal being cooked behind closed doors would apparently achieve this by neutralizing the Court’s power: by taking away its powers of judicial review; by changing the rules by which future justices to the Court are appointed; by packing the court by increasing the seats on the bench by four additional justices; limiting the terms of justices to twelve years; by removing the right of the public to petition the Court directly; and by transforming the role of the attorney general, limiting her or his ability to restrict government decisions in any way, and only provide non-binding legal advice.

It takes a minute to really appreciate the gravity of this.

Let it sink in.

Any one of these changes would represent a major change to Israel’s democratic structure. Taken together, they represent an effort to deconstruct the independence of Israel’s judiciary.

This week, Israel’s Supreme Court president Esther Hayut, speaking from Nuremberg, Germany, warned that democracies are not invincible to the designs of those who seek to dismantle them. “One of the universal lessons we should learn from the historical events I noted is that judicial independence…is one of the most important guarantees that the individual will have an address to turn to in order to protect their rights.” As European history reminds us, Constitutions, the rule of law, checks and balances, separation of powers — these defining features of democratic government are only as powerful as citizens make them.

That is why legal scholar and public intellectual Mordechai Kremitzer warned in Haaretz that if a majority in Knesset “can defang the court and set its rulings at naught, Israel’s government will be able to do whatever it pleases.” That is why he called these proposed new restrictions on judicial independence “a tangible and immediate risk.” And that is why he called for “the public to rise up to defend their liberty and rights against those who seek to revoke them.”

Well, Israelis are doing just that.

And New Israel Fund can be counted on to rise to this challenge. We will be here for this fight, to support the wide coalition of Israeli civil society organizations leading the public protest and push-back against these threats to Israeli democracy.

Israelis are leading this struggle for the soul of their democracy. It is the assembled voices of Israel’s citizenry—the leadership of the opposition, the shapers of public opinion in the media and academia, the organizations of civil society, and the ordinary Israelis whose liberties and lives depend on the democratic protections afforded to them—who will determine the course of Israel’s future.

But these Israelis must know that they do not stand alone.

In this moment, they stand shoulder to shoulder with the defenders of democracy here in America and around the world. And they stand shoulder to shoulder with you and me.