We need to understand that the High Court of Justice is one family. Even if there are different opinions, it is to the benefit of the State [of Israel] that there be a coherent Court, in which the relationships are like those of a family. Despite any differences, it is impossible to include someone who is not part of the system—Former President of Israel's Supreme Court, Aharon Barak, at the annual conference of the Israeli Association of Public Law, December 1, 2016.
We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us. Many sectors of the public look to the judicial system and do not find their voices heard. That is not democracy…I’ve warned against the damage caused by judicialization. Now, the time has come to act—Justice Minister Yariv Levin, at a press conference at the Knesset, January 4, 2023.
Over recent weeks, tens of thousands of demonstrators have taken to the streets, ostensibly to protest the measures proposed by the newly ensconced justice minister, Yariv Levin.
At stake is the fate of the current system which, in essence, subordinates the elected organs of government (the executive and the legislature), voted into office, by a wide swathe of the public, to the discretion of a small group of un-elected officials (the judiciary and like-minded functionaries in the Justice Ministry).
Accordingly, the proposed measures are aimed at curbing what is a virtual stranglehold, which un-elected jurists have today on national policymaking and on the control of political decision-making. Clearly, this impinges on the formulation and implementation of national strategy at widely diverse levels—from economics to national security.
The reform measures
In broad brush strokes, the proposed reform addresses four aspects of the prevailing system:
- The composition of the Judicial Selection Committee, the body that determines the choice of judges;
- The ability of the Knesset to override judicial decisions to strike down legislation;
- The judicial determination of "reasonableness";
- The status of legal advisors to government ministries.
Judicial appointments: According to Levin's proposals, Supreme Court justices will no longer have veto power over who is appointed to the bench by the Judicial Selection Committee. Under the reform proposal, the duly elected incumbent government will have a majority. Moreover, candidates for the Supreme Court will have a public hearing before the Knesset Constitution Committee, in which they present their judicial philosophy. In this regard, Levin declared: “There will no longer be a situation whereby judges choose themselves in back rooms with no protocol."
Accordingly, this measure will militate toward infusing greater transparency into the fuzzy opaqueness of the cozy cronyism of what is, in effect, a closed fraternity (see the opening excerpt from Barak).
Knesset override of judicial decisions to strike down legislation: According to the reform proposal, the Supreme Court will be explicitly prevented from deliberating and ruling on Israel’s Basic Laws, and will only be able to strike down Knesset legislation by a panel of all the court’s judges and with a “special majority.” A Supreme Court override clause will also be legislated to allow the Knesset to reinstate a law struck down by the court with a majority of 61. However, the Knesset will not be empowered to reinstate a law struck down by the court in a unanimous decision of all 15 judges during the course of that Knesset term.
The reform measures (cont.)
The judicial determination of "reasonableness": The proposed reform also abolishes the court’s ability to use the test of “reasonableness” to determine whether administrative decisions are “valid” and have taken into proper consideration all "relevant" factors. For years, the Supreme Court, as the ultimate arbiter of what is (and is not) "reasonable"/proportionate" has invoked the principle of "reasonableness" to reverse several significant government decisions, both at the national and the local levels.
The status of legal advisors to government ministries: The proposed reform introduces new regulations allowing ministers to appoint their own legal advisers, rather than getting counsel from advisers acting under the aegis of the Justice Ministry. The current practice, by which the advisers' legal determinations are binding on the ministry will end and their legal opinions will be seen as non-obligatory counsel. On this issue, Levin stated: "There will be no more subordination of the government to an unelected rank. The legal advisers are what they are called [advisers]."
It is the intended implementation of these measures and the alleged "threat" they pose to Israeli democracy that has purportedly ignited the vociferous protests across the nation.
It is of course utterly unclear why leaving fateful questions, that have crucial impact on the public, to unelected officials, not in any way answerable to the public, is somehow more democratic than allowing duly elected representatives of that public, who are answerable to the public, a greater role in resolving such issues.
Tearing off the mask of hypocrisy
But be that as it may, there is still one aspect of the demonstrations that is deeply concerning and casts grave doubts as to the sincerity and the motivations of the protests and of their participants.
This is the unabashed and unhindered display of Palestinian (PLO) flags, flaunted widely during the demonstrations—something from which the left-leaning media could not refrain from reporting. Indeed, one can only wonder what the point of brandishing enemy banners is—and how it has any bearing on the internal Israeli debate over domestic legal reforms. After all, there is no conceivable causal nexus between the Palestinian issue and the proposed reform of the domestic legal system.
So, are these self-professed "pro-democracy" activists showing their empathy for the homophobic, misogynistic Palestinian Authority despotism? Are they seriously implying that Israel should adopt a legal system like the one which prevails under the Palestinian Authority…or perhaps Hamas? Really??
Of course, this is highly unlikely.
Instead, the incorporation of the Palestinian flags in the protest activity tears off the facade of hypocrisy that masks the true nature and purpose of these demonstrations, revealing what really lies behind them.
Conspicuous by their presence…
Indeed, conspicuous by their presence, these flags reveal that the protesters are not really a group of high-minded citizens, genuinely concerned with the nation's future, but a motley collection of disaffected and defeated Bibi-phobes grasping at every chance to berate him and anything associated with him.
Having despaired of displacing him by normal democratic process via the ballot box, the last vestige of hope the left-leaning anti-Netanyahu political cliques have of removing him from office is through the legal system—and its (ab)use as a political weapon. They, therefore, have a vital and vested interest in forestalling any measures that may discredit the primary instrument used in the endeavor to unseat him—and preserving the power of the unelected jurist at the expense of the elected parliament.
That is the only conceivable explanation that can account for flying the Palestinian flag, with no discernable compunction—even immediately after horrendous terror attacks by Palestinians in Jerusalem, which left over half a dozen victims dead and others wounded.
Sadly, it seems that Jewish blood spilled in the street of Jerusalem is of little import when it comes to venting Bibi-phobic bile.
Dr. Martin Sherman spent seven years in operational capacities in the Israeli defense establishment. He is the founder of the Israel Institute for Strategic Studies (IISS), a member of the Habithonistim-Israel Defense & Security Forum (IDSF) research team, and a participant in the Israel Victory Project.