Is Israeli Democracy in Danger?

Horrified Israeli voters on the left shout and curse at those of us on the right, telling us that Bibi is destroying Israeli democracy. They refuse to consider that perhaps the problem is the justice system more than anything else.

Former Justice Minister Ayelet Shaked tried to make inroads in balancing the Supreme Court with selection of judges who are interested in deciding cases more on the basis of the law and less on the basis of activism and what they think the law should be. When I try to discuss this with leftist friends I am mocked and scorned. They tell me that Shaked was out to destroy the Court. Yet it is recognized by all and sundry that the Supreme Court became an activist court from the time Aharon Barak was President of the Supreme Court from 1995 to 2006.

I am sorry that such an important issue has become political, one that further divides between left and right.

The Edelstein Saga

When former Knesset Speaker Yuli Edelstein submitted his resignation rather than submit to a Supreme Court decision he saw as activist rather than legal, my leftist friends told me Edelstein acted from a desire to protect Bibi from having to face trial. Today, it seems that whenever the left does not agree with something the right does, they interpret it as protecting Bibi from the criminal charges against him.

The way I see it, however, was that Edelstein acted from a desire to protect the Knesset from intrusion on the part of the Supreme Court that had no mandate to tell the Knesset to operate in opposition to its own rules, rules that the Supreme Court had not, until that very moment, ever felt incumbant upon them to challenge.

They wanted Edelstein to convene the Knesset for the purposes of voting for his replacement. Since 61 MKs recommended that Gantz be given the mandate by President Rivlin to try and form a coalition government, it appeared that the wand to rule was going to pass from the Likud to the Blue and White party (B&W). This means that Edelstein, as a Likud member, was not going to hold onto his position much longer. Edelstein said that he would call the session to vote for his replacement on the day when the new government would be sworn is, as has happened throughout Israel’s short history as a modern state. It has never happened in any other way.

However, even without a new government ready to be sworn in, B&W insisted that Edelstein call for the vote for his replacement. (It is believed that was was because B&W were anxious to advance legislation that would disqualify Bibi from being prime minister, something they would only be able to do if they had one of their own as Knesset Speaker.) When Edelstein refused, the Supreme Court ordered him to do so. That is when Edelstein resigned rather than submit to something he believed “unconstitutional” even in a country without a constitution.

The Dilemma — and What Would You Have Done?

Perhaps you have heard of Milgram’s psychology experiment carried out in the 1960s. In this experiment, he tested the susceptibility of Americans to the voice of authority and whether or not people would comply with an authority figure even if that meant hurting an innocent person who was showing signs of being in pain. Unfortunately, more recent experimentation in a number of countries suggests that people are no less compliant today than they were in the 60s.

In this case, we have a principled man, Edelstein, willing to stand up to the authority of the Supreme Court when he believed the court was wrong. It takes a strong individual to do that. His steadfastness to his values, whether you agree with him or not, should inspire honest and open debate about the issue and not politically aligned knee-jerk reactions.

Will he be sanctioned for this? Will there be punishment? This is not clear.

The Vote for the New Knesset Speaker

The day following Edelstein’s resignation, MK Amir Peretz was given the task of calling the Knesset session in which a new Knesset Speaker was elected. Gantz, head of B&W, became the new Speaker. It was anticipated that he would hold the position until the swearing in of a new government and the election of a new permanent speaker. This new government was expected to be a sure thing.

However, soon afterward, the 61 voices B&W had behind them dissipated. Bibi, in a masterful stroke of politicking got Gantz to agree to consider forming a national unity government with him, something B&W promised the electorate they would never do. This caused B&W to fall apart, the result of which was that there was no new ruling government to be sworn in yet.

In this case, Gantz remains Knesset Speaker, a position with quite a lot of responsibility and authority.

The Supreme Court Intervenes in Running of the Knesset

What is of concern here is the Supreme Court session, lasting about 1.5 hours, as a result of which Amir Peretz was given a court order to fulfil the function of the Knesset Speaker with one task only: calling a Knesset session for the purposes of electing a new speaker.

The recording of this session was leaked last night. The recording was deleted from two places online and then, finally, Im Turtzu uploaded it onto their Facebook page so you can see and hear the whole thing here. After all, it is our right to to know what happens in our courts unless it is a case involving the victim of a crime who merits anonymity. And this is certainly not the case here. Therefore, there should be full transparency and the fact that the video was deleted from two sites is surprising and suspicious. What did they think would be damning about it?

I watched the entire tape. There was brief discussion about sanctions to be imposed upon Edelstein and both prison and a fine were mentioned. The former was dismissed out of hand and the latter apparently set aside because of the late hour and in order to get to the main purpose of the meeting: appointing a replacement for Edelstein who would do their bidding. Their bidding was to convene the Knesset with the express purpose of electing a new speaker.

There was discussion of whether or not the temporary court-mandated speaker would have the full range of responsibilities ascribed to the position or only be able to call for the special session to elect Edelstein’s replacement. They decided on the latter, calling it a ‘surgical operation’. This term was bandied about several times as they discussed having a ‘minimal’ level of intervention. They also discussed how to circumvent any possibility that Edelstein may rescind his resignation before the 48 hour grace period after which it would become final!

How legitimate is it that the court exert ANY level of interference in the running of the Knesset, in view of the fact that Edelstein was within his rights to function according to Knesset rules? That is the question everyone in Israel must ask themselves. After all, we vote for our Knesset and our elected representatives decided on the rules of operation. We did not vote for the judges. If some members of Knesset want to change the rules of operation, the legitimate way to do that is through Knesset votes alone.

Senior Lecturer at the Federman School of Public Policy and Government, Limor Darash, tweeted (English below):

חמש דקות, חמש דקות, שבהן: מבוטל סעיף בחוק יסוד, מוכנס תוכן חוקי חדש שמעולם לא נידון או חוקק בפרלמנט, הכל מוצע ע”י יועץ משפטי (היועץ המשפטי שאמור לייעץ לכנסת!) ומקבל גושפנקא בצו של בג”ץ. ולכל זה קוראים “ניתוח כירורגי קטן”. נשמע יותר כמו קצירת איברי הדמוקרטיה. pic.twitter.com/xNXpSnhV8y

— לימור סמימיאן דרש (@DarashLimor) April 19, 2020

Five minutes, 5 minutes, in which: a paragraph in a Basic Law is cancelled, new legal material that has never been discussed or legislated on in parliament is inserted, all recommended by the Knesset legal advisor (the legal adviser who is supposed to advise the Knesset!) and gets authorization as a rule of law by the Supreme Court. All this is called ‘a small surgical operation’. Sounds more like amputation of democratic organs.

A Demonstration Against Undemocratic Court Action

This morning, demonstrators gathered in front of the Supreme Court in Jerusalem to protest what happened in court on 25 March, now that they had access to the videotape of the session. The rightwing NGO, Im Tirtzu, organized the protest and it was held in full compliance with current health regulations. The organization made the following statement:

The demonstrators insisted that the High Court crossed a red line by unlawfully interfering in the Knesset’s agenda and giving an order in direct contravention to the Basic Law of the Knesset.

The demonstrators chanted slogans including “stop stealing our democracy” and “this isn’t Iran,” held a symbolic prayer for Israel’s democracy, and called on the courts to stop their “judicial piracy.” Acclaimed legal scholar and former United States federal judge, Richard Posner, was the first to coin the term “judicial pirate,” which he labelled former Israeli Supreme Court president Aharon Barak who was responsible for Israel’s “constitutional revolution” that gave more power to the courts.

Former Justice Minister Haim Ramon (Kadima) tweeted his reaction to the tape (English below)

הכי מדהים התנהלותו של היועמ”ש
של הכנסת, האמור ליצג את יו’ר
הכנסת המייצג את הכנסת.במקום זאת
הוא מציע ללא סמכות לבצע
” ניתוח כירוגי”בסמכויות הכנסת.שופטי
בג”ץ מאמצים את הצעתו בשמחה. מחזה הזוי בו הרשות
השופטת רומסת ברגל גסה
את הרשות המחוקקת. ושוברת שיא חדש של אקטיבזם שיפוטי.

— חיים רמון (@ramonhaim) April 20, 2020

The most amazing thing is the behaviour of the Knesset legal advisor, who is supposed to represent the Knesset Speaker who represents the Knesset. Instead of this, he, with no mandate to do so, conducts a ‘surgical operation’ on the Knesset’s authority. The Supreme Court judges merrily adopt his suggestions. This is an outrageous display in which the judiciary contemptuously tramples the legislature and breaks a new record of judicial activism.

Orly Lev, a social activist who participated in the demonstration, said:

The judges have forgotten that they aren’t elected officials. Why should we even vote if the judges are the ones who end of making the decisions and not our elected officials?

Im Tirtzu CEO Matan Peleg, who also participated in the demonstration, said:

The time has come for the judges to end their judicial dictatorship and realize that this is a democracy, not Iran.

Harsh words, indeed. And perhaps this is farther than anyone I know would like to go. But does it not make you angry that the Supreme Court agrees to intervene in a procedural Knesset issue when some MKs do not have the power or skills to influence the outcome of the situation in their favour on their own?

And these MKs want to lead the country. All I can say to them is: Grow up!!

Feature Photo credit: Ehud Tenne, provided by Im Tirtzu