There are different reports on how the incoming government intends to transform the legal establishment, but all the envisaged transformations will make the country look very different from what it does today.
From the judiciary’s perspective, his continuing nightmare would be the new government making it easy and routine to override the High Court of Justice, and to remove obstacles from new coalition members exercising powers that might be prevented by existing laws from doing so. to do. public corruption.
About 130 senior legal officials this week issued a public warning about the incoming government’s path to that goal.
At worst, the incoming government will approve a stand-alone basic law that allows the Knesset to overturn any Supreme Court ruling with a mere 61 votes or even smaller majority as soon as next week or the coming weeks.
This would essentially mean that any ruling coalition could dominate the Supreme Court on any issue without a single supporting voice from the opposition.
Put another way, legal experts worry that it will remove any checks and balances from the majority population, and sometimes degenerate into populist policies that can oppress minorities, be they LGBT people, Arabs, Druze, non-Orthodox Jews or others.
Fight for the court system
Itamar Ben-Gvir, MK of the Religious Zionist Party (RZP), has called for policies that could be seen as contrary to Israeli-Arab and Palestinian human rights, and he and some of the Haredi parties have called done on actions that may conflict with non-Orthodox movements. ‘rights.
According to the reports, almost immediately after the Supreme Court overruled the law, the new government will pass a law that allows someone convicted of a crime to be given only a suspended sentence and not an immediate jail term – such as Shas Party leader Arye Deri – to serve as minister.
Under existing law, Deri may first have to appeal to the Central Election Commission to serve as a minister, and at some point his desire to serve as a minister could trigger a court ruling that his conviction for tax crimes last year would be a finding contains. of moral unrest. This would prevent him from serving as a minister.
In fact, The Jerusalem Post learned from top legal sources that if the issue came to the Jerusalem Magistrate’s Court, which found him guilty, he would almost certainly be blocked from becoming a minister.
If the new coalition simply passes a law allowing Deri to serve as a minister despite a finding of moral turpitude, contradicting roughly 30 years of judicial precedent, under existing law the Supreme Court will almost certainly veto the law.
This is why the coalition will first pass a new basic law that gives it the ability to override the Supreme Court.
There is speculation that the coalition may also pass a law to cancel or interrupt the trial of incoming Prime Minister Benjamin Netanyahu.
Such a law would be almost unprecedented in Western democracies – canceling or interrupting a trial in mid-sentence.
If the coalition were to do so, it would do so on the grounds that a sitting prime minister should not be distracted from running the country, noting that some countries do not even allow cases to be brought against a sitting prime minister not (those countries only allow the legislative or executive branches to impeach a prime minister). Some members of the coalition also consider the court case politicized.
But almost all legal experts – even those critical of the impeachment – would see such a move as the ultimate abuse of power and end any sense that there are limits to what a prime minister can do in terms of public corruption. Mind you, some of these experts may even believe that Netanyahu will be acquitted, but they would say that the court should be allowed to determine the outcome.
Another technique that could mess up the works of the Netanyahu trial is RZP head Bezalel Smotrich’s recommendation to eliminate the crime of breach of public trust. This crime has been controversial for some time, as critics claim that different courts handle it in completely different and unequal ways. But in this case, there will be little doubt that the crime is being repealed to help Netanyahu avoid being convicted of crimes at his trial.
At this point, the least controversial part of the new coalition’s plan may be to split the powers of the attorney general into two separate roles: a chief prosecutor and a chief legal adviser.
It is the least controversial because even the previous coalition considered such a move, led by the outgoing Minister of Justice, Gideon Sa’ar.
Sa’ar even said that he would support the coalition on this particular move if it was not made with ulterior motives. He warned that if this move was made to use a new chief prosecutor to interfere with the prosecution of Netanyahu, or if the government made other moves that would politicize the state prosecution, he would vehemently oppose them.
Incidentally, Sa’ar and even some top current and former judicial officials would support the creation of a Knesset veto of the Supreme Court, if it was part of the establishment of some set of constitutional limitations on the Knesset that virtually all Western democracies have by virtue of a constitution.
They are also likely to support a Knesset override if it requires opposition votes — such as setting a supermajority requirement of 70 or 80 votes (many Western countries have supermajority requirements to override the judiciary).
Another nightmare scenario from legal experts’ perspective would be if Ben-Gvir is allowed to remove restrictions on the IDF’s open fire rules.
This, coupled with the Knesset’s bulldozing of judicial branch vetoes, could fatally undermine the degree to which the International Criminal Court and even some Israeli allies continue to view Israel’s judiciary as independent and trustworthy in defending human rights.
There are also semi-nightmare scenarios from legal experts.
The truth is that many officials do not think Netanyahu will rush to cancel or postpone his trial, not least because he believes he is winning and because any verdict could easily be 12-18 months away.
Furthermore, some leaks indicate that the Likud is resisting efforts to immediately pass a full-fledged Knesset veto from the Supreme Court until the spring, near the end of the current Knesset term.
If the move is delayed, the leaks indicated, the Likud would be in favor of the change but would want to make it comprehensive, taking into account a variety of separation of powers issues, so as not to be seen as on a partisan way not.
Such a delay would also raise the prospect that the Likud might hope to drag out the process and then trade the RZP for Benny Gantz’s National Unity Party to escape being seen by much of the Western world as a radical government to be seen.
In this scenario, Netanyahu may have to find another way to get Deri a ministerial role, such as only ignoring the Supreme Court on that particular issue. Or possibly he could try to negotiate with Supreme Court President Esther Hayut to find a way for the court not to weigh in so he can keep the judicial “bullet” in the “chamber”.
This may not be as bad in the eyes of legal experts as a broad shattering of the judiciary’s ability to restrain the other branches from abuse of power and populist tendencies.
But even a narrower process whose sole purpose would be to get Deri a ministerial role would be seen by legal experts as a new low and precedent for politicians to use their power to gain immunity from corruption charges and consequences.
What would prevent any future politician with enough power in a coalition to demand similar treatment? What deterrent would there be against ministers abusing their power?
Whether one believes Netanyahu is innocent or guilty, the fact is that Deri agreed to a deal in which he admitted to committing tax crimes – this after spending more than two years in prison some 20 years ago for ‘ a separate conviction for bribery.
Also, there were politicians on both the Right and the Left who all agreed deserved to be convicted and sent to prison.
Legal experts worry that the fight against public corruption will disappear, as it does in authoritarian democracies.
These are of course only a few of the possible scenarios and mostly reflect the view of the legal establishment, an establishment that views parts of the country as elitist and out of touch.
The coming weeks and months will reveal how far the new government is prepared to go and how nightmarish the impact the new reforms will have on the rule of law and human rights.