Tablet Magazine; original photo: Lior Mizrahi/Getty Images
Howard Epstein – A REPRIEVE FOR KING BIBI?
Have you been wondering what the large weekly public demonstrations in Israel are all about? Can it be right, the protestors ask, for the government to control both the Knesset and the judiciary? Those who are firmly of the right in the Jewish state are also perplexed, for they can see no evil. They might think otherwise if, after the next general election, the government is formed of the centre and left-wing parties. Confused? You are not alone.
Let us consider, therefore, why hundreds of thousands of Israelis turn out motzei Shabbat onto the streets of Israeli cities, in the winter; why doctors, lawyers, economists, bankers, businessmen and former military leaders are also scandalised by the government’s judicial reform agenda; and, as they are not entirely disconnected, why billions of dollars have already left the country and what has been the world’s strongest currency, the shekel, for well over a decade, is on the slide, even against sterling.
One ought to start at the beginning. The countries whose legal systems are built on the common law of England and Wales, whether their constitution is written (like that of the United States) or not (like those of United Kingdom and Israel) start from the basis that parliament is supreme. Now, we know that the Americans left that paradigm a long time ago. Not only is their Supreme Court a revising forum but also, as we saw over abortion, it can make new law and legalise it (see Rowe v. Wade in 1973), and have a change of heart and effectively repeal it (as it did last year in Dobbs).
Aharon Barak, the president of the Israeli Supreme Court from 1995 to 2006, liked the look of the American system and took the same route – and a noticeably left wing one. He espoused the view that judges should make rulings based on their own views rather than on precedent, the defining characteristic of the common law system.
Barak’s successors, treating every day in court as though it were seder night, continued in the same way: leaning to the left. Plainly now, Israelis on the right, about half of the electorate, were disenchanted and awaited their opportunity. The problem that we now see arises because pendulums tend to swing back sooner or later and the further they swung one way, the further towards the other extreme of their arc is where they will eventually end up.
There is a less legalistic and more visceral reason why those on the right have been itching to get hold of the reins of power. It is not only the defendant himself who believes that the prosecution of Binyamin Netanyahu is a thinly disguised attempt at political assassination. His supporters in Likud, and their constituency (largely the charedim and mizrachim) do so also. Those further to the right of Likud either have the same view or affect to hold it.
Another momentary diversion, this time to the home of the common law would not go amiss. The Supreme Court of the UK should do no more, or less, than carry out its constitutional function of interpreting and applying the law enacted by Parliament. Only once have they assumed supreme responsibility for the maintenance and preservation of the whole constitutional-political order. That was over Boris Johnson’s proroguing (suspension) of the business of the House of Commons in 2019. The UK Supreme Court basically ordered the MPs back to work. The UK Supreme Court has been heavily criticised for that decision and is unlikely to try to emulate the Israeli supreme court (à la Barak) in the near future.
By now you may feel a little lost, so allow me to present the reason why the protesters object to the Israeli judicial reform proposals. They say that they run contrary to the traditional view that parliament should be supreme, for what is proposed is that the Knesset should be able to override, or overrule, decisions of the Court. It’s rather as if the present Tory government, with its massive working majority, were to reprieve Boris Johnson if he were found guilty of partying during the lockdown. But it’s worse. Far worse – for what the Israeli government has in mind is that if King Bibi were to be found guilty by the Israeli criminal court of the bribery, fraud and breach of trust charges for which he is on trial, the Knesset will hand him a get-out-of-jail-free card.
Does that sound right to you?
© Howard Epstein, February 2023
