MK Simcha Rothman (Religious Zionist Party), head of the Knesset’s Constitution, Law and Justice Committee, spoke on Sunday at the Arutz Sheva Jerusalem Conference in New York City, as part of a panel with Attorney Alan Dershowitz and journalist Tal Heinrich.
Rothman commented on the incident over the weekend in which he snatched a megaphone from an anti-government protester who was shouting the word “shame” at him.
“It’s quite a simple issue. There were demonstrations outside the place where we had dinner. There’s no problem with it. As a longtime protester on many issues, I respect any protest. [But] to go for 10 blocks for 20 minutes, basically, after a couple – I was there with my wife – and to use a megaphone in very close proximity, that’s not a demonstration. That’s not a protest. That’s an attack,” said Rothman.
“That’s an attack on me, but because I don’t take it personally, the attack is actually on democracy. Maybe it’s connected to the issue that we’re talking about, the judicial reform.”
“Many people claim that if the judicial reform will pass, it will be the end of democracy in the state of Israel,” continued Rothman. “I don’t know about any country that lost its democracy because they changed the way they elect their judges. I know many countries that lost their democracy because they have very small, violent groups, that went and harassed elected officials and threatened them until they gave up their position, until they gave up their views…people who don’t understand the difference between a protest and a violent attack, they need some crash course in democracy.”
Dershowitz offered to defend Rothman if anyone tries to prosecute him for defending himself against the use of a megaphone essentially as a weapon.
“Under American law, it is permissible to restrict speech based on the loudness of the speech, the proximity of the speaker, time, manner and location,” said Dershowitz.
He commended the Israeli people over the manner in which, generally, the demonstrations have been conducted – for the most part peacefully and without violence.
“Having said that, I think both sides have misused the word ‘democracy’ and have overstated the dangers to Israel if either side prevails,” continued Dershowitz. “I agree with you that there would not be a danger to democracy if, in fact, the courts were somewhat weakened and did not have the authority they have today, but I also think that if the courts were strengthened or maintained the way they are – we have democracies, America is an example of that, in which courts make some of the most important decisions, taking them away from the legislature.”
“So, my goal, and the reason I insisted that we have a conversation rather than a debate,” said Dershowitz, “is to try to bring us closer together. This is exactly the kind of issue of a matter of degree, and where both sides have to compromise a little bit.”
Rothman was asked why he insists that the judicial system in Israel needs to be reformed and cited an interview from 2015 with former Supreme Court President Aharon Barak, which went largely unreported.
“The interviewers asked him what would happen if the court would say something and the government would say something else. Chief Justice Aharon Barak said then something he did not say when he was asked the same question 20 years before. He said ‘in this case, the army will decide. If the Chief of Staff will send is tanks to protect the court, the court would prevail. If he will send it to the Knesset, the Knesset would prevail,’” said Rothman, who also mentioned in this context the statement by then-MK Moti Yogev, who said a D9 bulldozer should be used to flatten the Supreme Court, and caused a widespread uproar.
“I said [at the time] that if a Knesset Member speaks about a D9 and the former Chief Justice is talking about tanks, and by the way, it’s against the rule of law to speak this way, we need to solve this problem and we need to solve it fast. The status quo is not an option when you get to these kinds of tensions.”
Dershowitz said, “I don’t think the status quo is an option, either…Andrew Jackson said the same thing when the Supreme Court rendered a decision supporting native Americans in the United States. That’s not the way it should be in Israel, and that’s not the way it should be in the United States. There has to be respect for the court, respect for the judiciary. It has to be self-enforcing."
“I think that the Supreme Court, under my dear friend Aharon Barak, went too far in a lot of ways. I don’t believe that the court should have the power to make decisions about whether the gas deal in Lebanon is permissible, or whether or not there were decisions of the Knesset that are unreasonable or even whether or not members can serve in the Knesset or in the cabinet. Those are political and economical decisions, but there are some areas that the court must have the last word, where we cannot allow democracy to prevail,” he continued. “You need a counter-majoritarian Supreme Court to defend certain rights - free speech, due process for guilty people, due process for accused terrorists – they must have a fair trial. They must have a right to counsel. And if the Knesset won’t give that to them, that has to be demanded by the court.”
“So I think the road to compromise requires that there be limitations on what the Supreme Court can do in areas other than core human rights, core minority rights, core free speech rights. But there have to be constraints on the court when it comes to political, economic or decisions regarding reasonableness. That’s the road to compromise that will permit Israel to thrive as one of the strongest democracies in the world.”
Dershowitz also panned those who oppose the judicial reform, saying they have used extortionist techniques by bringing up the economy, technology or Israel’s ability to defend itself. “I think those areas should be kept out of this debate.”
Rothman pointed out, “When Prof. Dershowitz spoke about freedom of speech, Israel doesn’t have freedom of speech in its basic laws, and I think freedom of speech is pretty much protected in Israel even in comparison to countries that do have it in their basic law.”
“But the court, in three different cases, took away freedom of speech when the people that the Knesset gave. When the court cancelled the law of Arutz Sheva…the Knesset legislated that Arutz Sheva, the only outlet for the right for many years, would be able to broadcast, and the court took it away, and they prosecuted everyone involved in Arutz Sheva, while not prosecuting other people involved in other radio stations.”
“Just recently, there is a huge corporation in Israel that is funded by the government which broadcasts news, does podcasts, it’s called the Israel Broadcasting Authority, and it gets almost one billion shekels from taxpayers in Israel. In the US it would be deemed hurting freedom of speech. Because if you shout with one billion shekels, what could a private radio station do? They need to compete in an unfair situation with the government-funded radio. So the legislation would say ‘let’s not have the government involved in this.’ The court cancelled this law. So the legislator gives freedom of speech and the court takes it away. And I won’t talk about criminal cases where the legislation is way more liberal than the judges because most of them come from the prosecution.”
Dershowitz suggested a system of checks and balances, saying, “By creating a system of checks and balances that’s how you keep it. Today, the left wants to weaken the Supreme Court in the US because they don’t like its decisions. In Israel the right [wants to weaken the Supreme Court]. We’re not going to get perfect decisions.”
“A system of checks and balances often preserves Conservatism, as it does in the United States. Sometimes the right wins, sometimes the left wins. The idea is that no branch of government has unlimited powers. That’s why we need compromise,” continued Dershowitz. “Courts are often wrong, I’m one of the most hardline critics of the US Supreme Court, I’m a critic of the presidency, of everyone and everything. That’s why checks and balances are so important, because nobody always wins with checks and balances. My point is that there should be an interplay between the executive branch and the judicial branch.”
Asked whether a compromise is reachable, Rothman replied, “I think that the main issue is the selection of judges. You can really agree on anything else. Whatever power you want to give the Supreme Court, I will sign onto it. But when I say I appoint the judges, suddenly everyone understand that they don’t want to have an entity that is all powerful. I believe that, in Israel, the left wants to give more power to the courts not because of checks and balances. The left wants the court to have these super powerful tools to cancel any laws it sees fit, because when they look at the judges, they see people who are like them and they know that the people in Israel would never vote for them. This is not about big issues of Jewish prudence, or rule of law, or democracy. It’s about ‘I want my way to win no matter what the result of the elections.’"
Dershowitz pointed out that “if the judges will be extremely right and the Knesset goes left you will have the same result” and Rothman replied, “That’s the reason that, from the first draft on the issue of how we appoint our judges, we changed it so that no elected Knesset could appoint more than two judges. That’s now on the table. Nothing else."
Dershowitz then said, “That makes sense. I don’t think that anyone would like to see structural reforms for structural reforms. The rest of the people want to see what works for their side. Very few people care for procedure or structure. They just want their way, in Israel or in the US. I think that if I could come to Israel and help bring about a compromise, in the end we could get something we could live with.”