Justice, justice shall you pursue”  Deuteronomy 16:11.

Almost without exception Palestinian terrorist attacks are “on hold” during the FIFA World Cup international association football competition. That being said, Israel’s defence and security authorities are ever watchful. Yet, despite their vigilance two terrorist attacks occurred this week? The first was the abduction of 
an Israeli Druze high school student critically injured in a car crash in Jenin and hospitalised there. The abductors demanded in exchange for the dead boy’s body the release of Palestinian terrorists incarcerated in Israeli prisons, or the bodies of deceased Palestinian terrorists held by Israel. Although no official statement was issued, it’s known that Israel refused to negotiate the exchange. It appears that the Palestinian Authority intervened and the IDF threatened to retrieve the body by force, Just the same, the boy’s body was returned when the terrorists realised that they were holding the body of a Druze high school student and not an Israeli soldier.

About the same time Palestinian terrorists detonated explosive devices at two bus terminals in Jerusalem, killing an Israeli teenager and injuring over 20 others.

Commentators reasoned that the terrorists who perpetrated the attacks were familiar with West Jerusalem and knew when and where to plant their explosive devices.  Other observers were quick to criticise the Israel Security Agency (better known by the acronym Shabak or Shin Bet) for not having foreknowledge of the attack. The Shabak is arguably the best security agency in the world. In this particular instance the terrorists managed to keep a very low profile. Still, forensic evidence and CCTV footage recorded at the site will eventually lead to their capture.

It appears that the timing of the attacks is related to the FIFA World Cup completion in Qatar and the state of “political limbo” in Israel

At this juncture, let’s look at another seemingly unrelated incident.   A 17-year-old Jewish Israeli was arrested on Tuesday on suspicion of attacking a female IDF soldier during the Shabbat Chayei Sarah celebrations in Hebron last Saturday.

The soldier was attacked during clashes that developed between Jews and Palestinians in Hebron during a coordinated entry of worshipers to the tomb of Otniel Ben Knaz, the first biblical judge of Israel. In and around Hebron there are a number of ancient burial caves where according to tradition the patriarchs and others have been interred.

I only mention the long-dead jurist for the purpose of discussing Netanyahu & Co’s efforts to turn the Israel High Court of Justice into a ‘rubber-stamp judiciary. 

Professor Suzie Navot (Vice-President of Research at the Israel Democracy Institute) argues that judicial reforms proposed by the right-wing bloc to enable a Knesset override of the Supreme Court, executive immunity, and the appointment of judges, threaten Israeli democracy and the already fragile separation of powers.

“Israel is a unique country when it comes to dealing with the dangers of populism and democratic erosion.The constitution and structure of the country exposes it to these dangers even more than in any other democratic country. Namely, because in other countries there are mechanisms, there are tools, which decentralise political power.

In every country, you have checks and balances between the powers. You have – with the exception of two or three countries – a rigid constitution. You have the splitting of the legislative authority into two houses. You have, in presidential countries, the right of veto, given to the president, of legislation, or a federal structure or a regional electoral system. And sometimes, like in Europe, even the existence of international organisations and courts. All of these are part of the checks and balances, and none of these exist in Israel. So, we are unique among free countries in not having any tools for the decentralisation of political power.

The most important problem in Israel, especially following the recent elections, is the fact that unlike any other place in the world, any ordinary majority in the Knesset can enact, amend, and delete any Basic Law – or any law – in a normal law-making procedure, in three readings, and even within one day. Which means that the politicians in Israel – and only in Israel – have the possibility to change the constitutional rules of the game at any time- between the system of government and its citizens. All you need is the magic number of 61 because it’s not only the minimum number needed to form a government, a coalition, but also all you need to change Israel’s constitutional arrangement, to change the authority of the court, the system of government: to become a presidential state, or a monarchy, a non-democratic state, or to limit or even delete any human right. That makes Israel really very problematic when we are talking about the dangers of populism and the power – or the absolute power – of the ruling coalition.” …..” The override is an idea that we copied from Canada, and it is a section that will allow the Knesset to enact laws that infringe human rights, even if these laws are disproportionate and for a wrong purpose. Under the most extreme current proposals, if the court declares void a law that infringes human rights in a way that is extreme or disproportionate, then the Knesset, by a majority of 61, will be able to enact it again, because this is the will of the majority. It may sound democratic to some people, but democracy is not only the rule of the majority – definitely not! Democracy is also an effective protection of human rights, especially the rights of minorities. And, therefore, the override rule is actually intended to allow the Knesset to overcome us– it’s about our rights; the people. It will allow our rights to be limited in a disproportionate way: the right to equality; freedom of speech; perhaps a woman’s right to her body; freedom of religion or the right to property.”…” Judicial review of laws in Israel is not written in any Basic Law but follows a monumental decision by the Supreme Court in 1995. Since then, the court possesses powerful judicial review, but this power has been used with restraint, and very carefully, over the last twenty-five years. Only around twenty laws have been declared unconstitutional. But if you are looking for a section in the law where it says that the court may judicially review laws and declare them unconstitutional – we do not have it.” …..

Israel is a mixed system and is very distinct. Until 1980, Israeli courts were bound to follow British judge-made law. Everything that happened in Britain we knew, we had to learn, and to teach. This article was abolished in 1980, but even so, the custom of following British and American tradition still prevails. And the status of everything in the legal profession is far more similar to England or America than to Germany or France. Now, the structure of our legal system is influenced by common law, and we do not have judicial review – as Britain did not have until the Human Rights Act. Judicial decisions here are considered a source of law; binding precedents, like in Britain. The structure of the judiciary and the rules of evidence and procedure are very similar to the corresponding systems in common law. But we still have a mixture of influences, and we like to copy things from all over the world, even without thinking about the outcomes.

We took the idea of the override from Canada. In effect, Section 33 of the Charter of Rights and Freedoms which is called the ‘notwithstanding clause.’ It is also called the ‘override clause’. It is part of the Constitution of Canada. The clause was crucial in winning provincial support for the Charter. The clause allows governments to bypass some rights. Such an override must be renewed after five years. Use of the clause is politically hard and therefore rare. It has been used by provinces only rarely. It has never been used by the federal government.

Further to that, we’re speaking about the Norwegian Law of allowing ministers to resign from the Knesset and new MKs to enter in their place. We had a biannual budget like in Bahrain, and we are talking about the French Law, granting immunity [from prosecution] to a sitting prime minister. This is something that Israel would very much like to do: “okay, let’s do what they’re doing”, without thinking “are we really so similar to Canada? Are we really so close to this system in France, to the culture? Are we really like the British people, who have the culture of “it is not done”? But this is Israel- it’s a unique country, and we really have a mixture of influences.

This is really a problem. Netanyahu’s court case, if it continues it could last at least another three or four years. What kind of justice is it if you have a citizen that has a cloud above his head – a dark cloud of a criminal indictment – and has to wait for five, six, or seven years, and then perhaps be declared innocent? This is the problem, but the proposals of the Religious Zionism party are not dealing with it. They are dealing with power: They want more power, and the means to limit the power of the Supreme Court.

The Supreme Court of Israel is not only the Supreme Court of Justice. The Supreme Court mainly deals with appeals from the District Courts, meaning that it is also the Criminal Court of Appeal and the Civil Court of Appeal for the country. The composition of the Supreme Court selection committee seeks balance.

The committee is currently comprised of a panel of nine: four politicians (two from the government, two from the opposition); two members of the Israeli Bar Association; and three sitting judges. Advocates for reform propose increasing the political quota.

And the fact that a majority of seven out of nine is required usually leads to a compromise and the consensual selection of candidates.

The balance between the professional and political is very important in Israel because it preserves the independence of the judges. And in Israel, unlike most democracies, the judiciary is the only factor restraining the power of government. Unlike most democracies, in Israel there is no entrenchment in the constitution of the several arrangements that guarantee the independent status of the judges, for example: their tenure, the date of their retirement, the way they are appointed. Everything can be changed by a simple Knesset majority. The Supreme Court of Israel could be erased by a regular Basic Law passed by a simple majority of two versus one – it does not need even 61.

I don’t think the committee selection method is unusual and it can be seen as part of a global trend that is moving to selection models that are similar to the Israeli model, with representative members from several authorities. For example, many appointments committees include professionals – or in consultation with professionals – in Britain, Greece, Canada, Australia, France, Belgium, Austria. In these cases, you need cooperation between the authorities or a very, very large, mature majority of the parliament, which not only includes the government, but also the opposition.

Therefore, I think the proposed changes to selection are a real threat to the independence of the judiciary in Israel. It’s here, as part of the plan of Religious Zionism, which actually means they propose to erase everything that is independent and professional and objective in the public system. They want the judicial system to be subservient to the politicians in power. It is very problematic for Israel because the Supreme Court is the only branch – the last branch – with the power to limit government.”

In the meantime, the political wheeling and dealing continues and Netanyahu’s “dream team” is looking more like a nightmare.

The Religious Zionist Party headed by Bezalel Smotrich, and Itamar Ben-Gvir is eager to introduce legislation in favour of the override clause. It would likely help Arye Deri (Shas) receive a government portfolio. Following a conviction on tax evasion, Deri received a year's suspended sentence, and was also ordered to pay a NIS 180,000 fine.  He decided to resign from the Knesset knowing that no decision would be made on whether the offenses carried the designation of "moral turpitude" which would again bar him from running for office for 7 years. Attorney-General Gali Baharav-Miara has told incoming prime minister Benjamin Netanyahu that he would need approval from Central Elections Chairman Yitzhak Amit to appoint Shas party leader Arye Deri as a government minister due to his conviction and suspended jail sentence this past January. Once he gets his team together, Netanyahu is expected to permit other members of his coalition government to introduce the “override clause”. If enacted retroactively he could petition to dismiss all criminal charges filed against.

Maybe we are not all equal before the law.

 

Have a good weekend

 

Beni,                                                   25^th of November, 2022