Democracy in Israel: Justice Reform or Revolution?
Justice reform or revolution in Israel? Is there a point when majority rule becomes undemocratic? Vivian Bercovici on the critical debate.
I. THE CASE OF ARYEH MACHLOUF DERI
Last Thursday, an extraordinary case was heard by a panel of eleven judges of the Israeli Supreme Court in a six-hour sitting.
The session was convened urgently to consider a law passed in recent weeks by the newly sworn in Knesset, as a plenum. Among the changes was what is known colloquially in Israel as the “Deri Law”, eponymously named for the MK it is intended to protect.
Shas leader and rabbi, Aryeh Deri, is now thrice convicted of tax and corruption-related offences. He served just under two years of hard time for his initial convictions in 1999 for crimes of moral turpitude (committed while was Minister of Interior). After his statutorily prescribed period in political exile, post-prison, he returned to public life and high office.
Last February, Deri pleaded guilty - again, to corruption-related offences (although his agreement to plead meant that the severity of the crimes was reduced, as is routine). These, too, were committed while he served as a cabinet minister. He received a 12-month suspended sentence, meaning no prison time. This judicial benevolence was based upon the assurance that Deri gave to the Court, affirming that he would retire from public life immediately as a quid pro quo. The presiding judge understood that Deri agreed to leave public life. Forever.
On the basis of this undertaking – and Deri’s presumed honor in making it – the judge exercised discretion and treated Deri (who retired from Cabinet in order to satisfy plea terms) with extreme leniency.
Fast forward a few months and Deri is once again leading his Shas party to an unprecedented triumph – 11 Knesset seats. He’s back.
But. But. The undertaking.
Deri holds firm. His position is that Israel’s Basic Laws (statement of governing principles that are the closest thing the country has to a constitution) prohibit any person serving a custodial sentence from serving in high office. Deri’s sentence is suspended. Therefore, he says, the Basic Law does not apply. He seems to have conveniently forgotten his pledge to the Court to leave public life in exchange for leniency.
So, the bespoke “Deri Law” is passed by the Knesset to clarify that only convicted criminals serving a custodial sentence are prohibited from holding high office. It also, significantly, requires an amendment to one of the twelve Basic Laws.
As expected, a number of civil society organizations (not to mention the Opposition) oppose the passage of the Deri Law. Objections vary but in essence all invoke concerns regarding the legalized corruption of the integrity of Israeli government.
Typically, when any matter is litigated at the Supreme Court, the Attorney General – legal adviser to the government – would advocate in support of its position. But that was not the case last Thursday. Gali Baharav-Miara, a career public servant and Attorney General, is clearly not trusted by Netanyahu and has been uncustomarily excluded from cabinet and other meetings of high officials. Her office neither opposed nor defended the Deri Law.
The AGs position was that there was no legal reason to oppose the Deri Law but that in the circumstances – it set an inappropriate – as in immoral and unreasonable – precedent. The Deri Law is clearly intended to remove inconvenient obstacles in order to allow a recidivist criminal to hold a position of the highest responsibility to the state. To suggest that he is remotely suitable for such a role is deeply offensive to many.
This concern was articulated crisply by one Justice on the panel, who stated:
"One cannot say one is retiring and receive the benefit of a convenient plea bargain, and a short time later say the opposite in order to be appointed an MK and minister."
The response from Deri’s counsel was some mumbling about how there seemed to have been a “misunderstanding” regarding the “length” of the “retirement.”
II. MINISTER OF JUSTICE YARIV LEVIN, JUDICIAL “REFORM” AND ARYEH DERI
The night before the Supreme Court hearing regarding the Deri Law, newly appointed minister of Justice, Yariv Levin, addressed the nation.
It was no coincidence. Levin was sending a not-so-subtle message to the Supreme Court, that this government was determined to rein in what it considers to be an out-of-control activist court and judiciary, generally.
He took to the airwaves shortly after 8 p.m. Wednesday evening, when most Israeli households are tuned into the broadcast of the evening news. Levin announced the government’s far-reaching “reforms” to the justice system, which also includes an evisceration of the Supreme Court.
His bold announcement was no surprise. Netanyahu and his coalition partners have been consistent in stating their intention to do everything addressed by Levin. The lingering question was whether they would actually follow through and how quickly.
We now know.
In Levin’s short statement he dismissed the Supreme Court as being a thoroughly undemocratic institution, saying that it appointed judges behind closed doors, operated in secret and was accountable to no-one.
On the contrary, he argued, the people of Israel went to the polls and cast their votes and elected this government. Honoring their choice, he said, that was democracy. Democracy is alive and well in the Knesset and there it shall be contained.
What Levin overlooks is that the public did not vote for a coalition of the nature that we now have. The public did not vote on the coalition agreements negotiated, behind closed doors, between Likud and its partners. And the public, it seems, is not amused.
A recent poll conducted by the Israel Democracy Institute found that a majority of Jewish Israelis – many of whom voted for the various parties in the coalition – feel that Likud botched the coalition negotiations and conceded far too much to the extreme right.
The public could not foresee the degree to which Likud would capitulate to demands by the haredi and Religious Zionist parties; which, among other consequences, will put an unsustainable and immediate strain on the Treasury, not to mention the encroachment on fundamental democratic norms.
All the fuss over judicial “reform” distills to three key points:
1) Supreme Court and senior judicial officials shall become political appointees. This, in and of itself, is not inherently ill-advised, but when combined with the whole package the effects of total political control are amplified, compromising the independence of the judiciary and justice system, a core feature of any democracy. The standard is not “perfection”, which of course, is unattainable, but flawed within reason. I suggest that this reform package falls far short of that reasonable standard.
2) Any powers of the Supreme Court to modify, strike down or send legislation back to the Knesset for re-drafting shall be vitiated by a so-called “Override Clause.” Minister Levin was clear that the Knesset would introduce and pass such legislation and that a razor-thin count of 61 MKs would suffice to override the Supreme Court. On pretty much everything. In effect, this clause will defang the Supreme Court, utterly. It will have no power and the Knesset’s power will be unfettered.
In Israel, there is no Senate or upper house where legislation may be poked and tweaked. That has been the domain of the Supreme Court. Levin’s “reform” will empower 61 MKs – even when they vote as a bloc based on closed door deals – to change any law, even the Basic Laws.
There are many institutions in a democracy that should never be put to a vote based solely on a political majority. To override a Basic Law, for example, the threshold must be higher and require support of parties in the Opposition as well. Otherwise, the 61 have a blank cheque to do as they please. And they have indicated that this is exactly what they intend to do.
A majority of 61 – especially with the current Knesset constitution – is a death knell for minority rights. Women, LGBTQ, Arabs and other minorities are all prime targets.
3) The deeply entrenched common law standard of “reasonableness” – to which judges turn where there is no specific law applying to a circumstance being litigated – is to be expunged. So, for example, the position of the Israeli AG that, even though the legal basis for barring Deri from serving in a ministerial role may be unclear, the reasonableness standard may be applied. No thoughtful leadership would dare to suggest that a man with Deri’s past be considered remotely appropriate for such high office. And so, the Levin response is to do away with “reasonableness.”
Lastly, this “reform” is also prescribing that all lawyers advising senior levels of political staff be appointed by politicians and not be recruited from the professional ranks of the public service, as has been tradition.
To be fair, there is considerable merit in this approach, but in order to be well-served, every political leader absolutely must be advised by career public servants with institutional knowledge and history, competence and independence. They will provide the politicians with clear advice that may not align with what they wish to hear but will reflect the public interest and law. Ideally, political leadership would access and value advice by counsel they appoint and trust, personally, as well as civil servants.
It is inconceivable that a senior elected official would choose not to consult with career public servants, but that seems to be the hyper-partisan approach being adopted. And it ensures absolute political control over every aspect of justice and law, violating a Basic Law articulating the imperative of an independent judiciary.
The Israeli Supreme Court is expected to render a decision this week on whether or not Aryeh Machlouf Deri is fit to be appointed a Minister. Let’s speculate that the Court decides against Deri.
Their reasoning would likely touch on the fact that he is a recidivist offender with a predilection for committing crimes of moral turpitude. Furthermore, they may say, he has treated his agreement and undertaking made before the Jerusalem District Court – to retire from politics – cavalierly at best, contemptuously at worst. This is a man who seems himself as being above the law and demonstrates that arrogance, repeatedly. By any reasonable assessment and measure, this is not the type of person suited to hold positions of public trust.
And, if that’s what the Court decides. So what?
The Knesset will then pass the “Override Law” that Bibi has been talking about for years. This law will state that the Knesset is not bound to adhere to any ruling of the Supreme Court, as long as a razor thin majority of 61 MKs support that position.
During the hearing on Thursday, Chief Justice Esther Hayut asked counsel whether it was acceptable to “trade” in any values or principles – as long as such a “deal” was approved by the majority. Her question was leading, of course, but did not give those defending the Deri Law a moment’s pause.
Once the Override Law is passed then the fractious governing coalition may well become an ongoing exercise in extortion. To shut down his corruption trial Bibi desperately needs this coalition to survive. Many MKs in his 61-member coalition promote agendas considered to be hateful and extreme by a majority of Israelis. But the leverage of these niche parties will be considerable.
And there is no institutional authority to check or balance their exercise of what is, in fact, absolute power. The Supreme Court effectively becomes redundant. Unless., of course, it accepts its reinvention as a puppet of the governing coalition.
This is not judicial “reform” but, as many are calling it already, a revolution.
As Minister Levin stridently affirmed on Wednesday evening, the majority rules. But this majority is a manufactured reality, an outcome of backroom deals and extortion and demands. It was never put to a vote by the people. If it had been, it would almost certainly have been rejected by the majority of Israelis. Even among diehard Likudniks there is intense dissatisfaction.
If the straw man offered up on Wednesday night by Minister of Justice, Yariv Levin, is meant to be convincing, it is not. He might as well have stood before the cameras and said: “We don’t like what the Supreme Court does. In fact. We don’t like what the whole justice system, does. And so we’re just going to shove them aside and do what we think is best and call it democracy. Thank you and goodnight.”
Which, actually, is exactly what he did say.