Aviel Sheyin -Stevens
Aviel Sheyin -StevensCredit: INN:AS

In Israel, the legislature is not sovereign to legislate, and the executive lacks actual control to execute the instructions of the legislature. The judiciary has established itself as superior to all other branches of the government; intimating that it knows better what the country needs than the people and their elected representatives.

Through almost five decades of Israel’s existence, the courts did not have the authority or the jurisdiction to invalidate a law of the Knesset.

In 1995, Aharon Barak, President of the Supreme Court of Israel (1995-2006), decreed that “everything is justiciable,” everything can be done by judges; enabling the Supreme Court to carry out a judicial coup d’état.

Since the Barak era, the Supreme Court of Israel adopted a policy to hear practically every type of question brought before it.

Justices became generals deciding what the military could do and how to do it, they became economists examining budgets and spending priorities, they became overlords examining ministers to be allowed in the cabinet or legislators to be allowed in the Knesset, they became rabbis examining religious matters and doctrines, etc.

Israeli judges cannot be appointed or removed by the Knesset. The Judicial Selection Committee was established in 1953 to appoint all judges. The committee was intended to prevent outside political pressure; however, it serves to aid left-wing political dominance.

The Supreme Court consists of 15 justices that are appointed by the Judicial Selection Committee. The committee is composed of nine members: Three Supreme Court Justices (including the President of the Supreme Court), two cabinet ministers (one of them being the Minister of Justice), two Knesset members, and two representatives of the Israel Bar Association.

The influence of the Supreme Court members on the Judicial Selection Committee is essentially absolute: although they constitute only a third of the committee, they are the only stable group, while the other members change frequently. The justices further dominate the committee through an alliance with the representatives of the Israeli Bar Association. The three Justices and the two attorneys from the Israeli Bar constitute a majority. And the three justices exert veto power over Supreme Court appointments.

The Supreme Court's control over the Attorney General of Israel is extensive. Every decision of the attorney general is subject to judicial review, including whether or not to prosecute a public figure.

The attorney general cannot be appointed or removed by the executive branch or the Knesset. The appointment is made by a commission of five members: a retired justice of the Supreme Court, a former justice minister or attorney general, a Knesset member chosen by the Constitutional Affairs Committee of the Knesset, an attorney chosen by the national council of the Israel Bar Association, and a legal expert chosen by the heads of the university law schools in Israel. It is customary that the selection for the position is brought to the government, which invariably approves the appointment.

The President of the Supreme Court and the Judicial Selection Committee, influenced by the Supreme Court, often appoint the attorney general as a Supreme Court justice after the term is over.

Since Barak’s diktat, the authority of the Knesset to promulgate laws has diminished. The justices of the Supreme Court and the attorney general seized legislative power by abrogating laws, interfering with the legislative process, and dictating laws through legal opinions and judgments. They also seized executive power by canceling government decisions, and asserting the power to dictate policies to the government.

In 1993, the Supreme Court made the “Pinchasi” ruling: Government ministers must resign if the attorney general indicts them. Thus transforming the attorney general from the government’s legal advisor into the ultimate boss of elected leaders.

Speaking at a conference in December 2018, Attorney-General Avichai Mandelblit insisted that legal opinions of the attorney general have the force of law and ministers must abide by them. Given that Mandelblit also asserted the power to cancel laws and reject the legitimacy of legislative initiatives, his statement indicated that the attorney general is essentially Israel’s sole legislator. Knesset laws can only be enforced if the attorney general agrees to enforce them. Whereas, the decisions of the attorney general are final.

That is despotism!

The “nonpolitical” system of appointing justices and attorneys general has vastly aided left-wing political dominance.

In February 2019, the unelected Mandelblit upended the April 2019 election campaign by announcing his intent to indict the sitting Prime Minister, Benjamin Netanyahu, based on criminal probes of dubious quality, which impacted Netanyahu’s ability to govern as Israeli voters should decide. Netanyahu was formally indicted in November 2019.

Currently, operatives under incumbent Attorney General Gali Baharav-Miara, are “prosecuting” Netanyahu, who serves as Leader of the Opposition. He is being tried for “bribery.” to Arnon Moses (Yediot Aharonot owner and publisher) and Shaul Alovich (former owner and publisher of Walla News website, and owner of Bezeq telecommunications company) are his co-defendants. They are being prosecuted for the “crime” of allegedly giving voice, or attempting to give voice, to information ignored and silenced by the establishment media.

The establishment media in Israel has a thoroughly leftist bias. When Netanyahu was Prime Minister, he also took the communications portfolio to ensure that right-wing voters could have media platforms that expressed their views.

In 2018, after years of aggressive investigation, the prosecution had only a few cigars from Netanyahu’s rich friend with which to indict him. Instead of ending the investigation, the prosecutors unilaterally reinvented the bribery statute; aiming to indict the sitting Prime Minister. Netanyahu had received no monetary reward from anyone. So they defined positive media coverage as bribery, and accused Netanyahu of receiving a “bribe” in the form of positive coverage from Alovich’s Walla News, for regulatory favors to Alovich-owned Bezeq. They also indicted Alovich of “bribing” Netanyahu with positive coverage.

Whereas, even before they filed their indictments, Netanyahu received hostile coverage from Walla News, as is the case in all establishment media outlets in Israel.

So the prosecutors unilaterally changed the statute again; determining that media outlets giving “unusual responsiveness” to a politician, are bribing that politician (well, if that politician is Netanyahu).

Meanwhile, the prosecution’s case against Netanyahu has been destroyed by the 20 or so prosecution witnesses.

The first 12 prosecution witnesses were supposed to testify that Netanyahu received unusual responsiveness for his requests from Walla. Whereas, they all testified to the unresponsiveness of Walla’s treatment of Netanyahu in absolute terms, and in comparison to other politicians. Walla editors ignored more than half of his office’s requests. The rest were mostly routine communications, mainly press releases that all other media outlets also covered.

Afterwards, the trial moved to the alleged favors Netanyahu provided Alovich’s Bezeq. But the prosecution’s witnesses all attested that Netanyahu had no role in the regulatory process.

The prosecutors coerced former Communications Ministry Director General Shlomo Filber into testifying against Netanyahu, by ordering the police to spy on Filber. They bugged Filber’s cellphone, downloaded all of his personal information and reportedly used it to threaten Filber with indictment if he refused to turn on Netanyahu.

The dates on which the prosecution claimed there werer meetings between Filber and Netanyahu to plan favoring Alovich turned out to be impossible and did not happen.

Recently, Netanyahu’s defense attorney Amit Haddad presented transcripts of conversations Filber had with journalists Amit Segel and Raviv Drucker.

Filber told Segal that Netanyahu committed no crime. He also told Drucker that as director general of the Ministry of Communications, he had no authority over regulatory procedures governing Bezeq.

Now, the prosecution is left with its core claim that it is a “crime” to cover Netanyahu fairly. Since Alovich wanted to give fair coverage to Netanyahu and Moses was willing to consider it, they were both indicted.

In Israel’s history, no politician has been demonized like Netanyahu. And in the past three decades, he has been the most popular politician in Israel, in terms of public support.

Netanyahu’s indictment is a move by the left-wing legal fraternity to destroy freedom of the press and democracy in Israel. There are those who think it was intended to keep him from being reelected, a goal which succeeded.

In Israel, the media has blended with the political establishment to aid the Supreme Court and the Attorney General in their efforts to undermine and ultimately destroy Israeli democracy, by denying the public a voice in the national discourse.

Attorney-General Baharav-Miara undermines democracy by thwarting the public’s will to achieve its objectives through its elected representatives.

She undermines governance, because she could delay and stop processes, and prevent the government from functioning.

She undermines the accountability of the government, since she could preclude a governmental initiative but does not carry any responsibility for the minister’s failure to fulfill his or her office’s objectives.

She also undermines the right to a fair trial, because even the worst criminals deserve legal representation; whereas, there is no one to represent the public and its elected representatives when the attorney general presents her own position or presents the position of elected officials halfheartedly.

The establishment elites see Netanyahu as the enemy because he understands that the people should be in charge of who runs Israel; not unelected justices and bureaucrats. However, he did not expend efforts to change that during his terms of office, one of the criticisms launched at him by the right and something he grew to regret..

In a democracy, key officials stand for election at relatively short intervals and thus are accountable to the people. A judiciary that freely overrides the decisions of those officials is despotic. As Abraham Lincoln stated, “if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.”

The Knesset should have the power to remove the attorney general and despotic judges appropriating the powers of elected officials; overriding the decisions of the Knesset and the government; and targeting citizens they deem political opponents.

If Israel is to maintain its democracy, its elected officials must challenge the legal fraternity and restore to the Knesset the sole power to legislate laws.

Dr. Sheyin-Stevens is a Registered Patent Attorney based in Florida, USA. He earned his Doctorate in Law from the University of Miami.