'The Israeli Government Has an Interest in Disrupting the Elections, Giving Free Rein to Thugs'

Netanyahu's judicial overhaul was partially blocked, but the danger to Israeli democracy persists. Constitutional law experts tell Haaretz they believe the struggle for their independence came at the expense of protecting human rights, especially of Palestinians – and the Supreme Court enters the elections alert but weakened

July 22nd, 11AM July 22nd, 12PM

When Justice Minister Yariv Levin unveiled the government's judicial overhaul in January 2023, it plunged Israel into one of the most profound political and social crises in its history.

Mass protests filled the streets. Then came the October 7 massacre, the hostage crisis and months of missile fire, followed by devastating wars in the Gaza Strip and Lebanon and two rounds of direct conflict with Iran.

Yet none of this deterred Prime Minister Benjamin Netanyahu's coalition from pursuing the overhaul until the Knesset dissolved last week. Three and a half years after Levin first presented the plan, and with Israel entering a critical election period, it is time to assess the damage.

How much of the overhaul did Israel's most right-wing government manage to implement? And how successful were the institutions and officials resisting it – above all the High Court of Justice and Attorney General Gali Baharav-Miara – in containing the assault on Israel's liberal democratic order?

Constitutional law experts with whom Haaretz spoke present a complex picture. On the one hand, they praise the High Court and Baharav-Miara for blocking the overhaul, with the backing of the public and segments of the media. On the other hand, they warn, the mechanisms for protecting democracy did not prevent the politicization of the police. Moreover, the focus on blocking the overhaul came at the expense of protecting the human rights of Palestinians and of Arab Israelis.

Among the slew of antidemocratic laws, retired Supreme Court Justice Anat Baron highlights the law passed last week that, for the first time, allows gender segregation in master's degree programs.

First, the bright side. Numerous antidemocratic laws and government decisions were blocked. Among other things, the High Court struck down the Basic Law to cancel the reasonableness standard and the amendment crafted to prevent Netanyahu's removal from office due to incapacitation; the push for the override clause failed; the seniority method in appointing a Supreme Court president survived. The High Court also struck down a section of the Police Ordinance empowering National Security Minister Itamar Ben-Gvir to take over the investigations department, blocked the Baharav-Miara's dismissal and preserved the integrity of the state comptroller selection process.

Prof. Yoav Dotan of the Hebrew University of Jerusalem agrees that the blocking mechanisms worked effectively to thwart dangerous legislation. On the eve of the judicial overhaul, Dotan was one of the most consistent advocates for restraining the judiciary. However, when Levin's plan was published, he opposed it, calling some of its steps "super dangerous."

"When comparing Israel to countries like the United States of Donald Trump, Poland, Hungary, or Brazil, which are undergoing or have undergone similar processes of democratic backsliding, we see that here the blocking mechanisms and gatekeepers functioned well," he says.

"In every country and government, there are institutions that stand against the elected officials, such as courts, legal advisers, and commissions of inquiry. And also the media. 21st-century populism is first and foremost an attack on these institutions. Our democracy's blocking mechanisms stood well against this attack and responded with a fairly high level of resilience." According to him, "Levin wanted to climb a 200-meter-high tree and ended up with a half-meter-high bush."

"The government's main goal in January 2023 was to erode almost completely the independence of the attorney general and the High Court and their oversight powers, and to allow the government to act without restrictions, contrary to law," Prof. Barak Medina says. "In this regard, the attempt completely failed." Medina believes it was an excellent achievement for Israeli democracy to block all government attempts to eliminate the rule of law. "This happened thanks to a combination of an extraordinary public struggle, the attorney general's determination and a courageous stance by the majority in the Supreme Court," he says. "The determined public struggle also ensured that the government wouldn't dare violate any High Court ruling."

Nevertheless, two laws due to come into effect in the next Knesset could completely eliminate the independence of the court and the attorney general. The first is the law politicizing judicial appointments. The second is the law passed last week stripping the attorney general of most of her powers.

"Either the next Knesset will prevent their entry into force, or they will be struck down by the High Court beforehand," Medina predicts.

The fact that the Supreme Court justices and the government's legal counsel largely succeeded in holding the line isn't self-evident. The last Knesset term was, to say the least, complex, difficult, and challenging for the justices, especially for President Isaac Amit, and for the Attorney General's Office.

They faced a campaign of pressure, delegitimization, and almost daily, unprecedented attacks from right-wing politicians and the right, backed by Channel 14 and social media, because they opposed the antidemocratic moves. For the first time in Israel's history, the justice minister boycotted the Supreme Court president. Levin refused to shake Amit's hand, blocked appointments, and made it very difficult for him to manage the judicial system. Amit also endured a personal smear campaign by right-wing groups. Numerous complaints were filed against him with the commissioner for public complaints against judges. Only one of them, concerning a proper disclosure that Amit failed to provide in a proceeding in which his brother was involved, was accepted.

Against Baharav-Miara, the government conducted an unprecedented, humiliating, and illegal impeachment process, which the High Court blocked. In a rather childish act, Levin locked her out of the ministry's Tel Aviv office, which legal advisers had used for decades.

The attorney general and her deputies, especially Gil Limon, endured attacks from lawmakers and cabinet ministers whenever they presented a position to the Constitution, Law and Justice Committee, the cabinet, or the High Court.

A source close to the attorney general says that none of this deterred Baharav-Miara or other senior officials under her from doing their work. He says the attacks to a large extent strengthened the team spirit around Baharav-Miara and increased their sense of mission and determination "to do the right thing." He says the public wonders sometimes how they react to the harsh attacks, and thinks that perhaps they're broken or rueful. They're human beings, and it's clear that working with the government in this way is hard and that such attacks provoke anger. But, their solution is to show up every morning and act professionally, using their best judgment.

Undermining the foundations of democracy

So much for the optimistic side. On the more negative side, the determination of Levin, Constitution, Law and Justice Committee chairman Simcha Rothman and their partners to persist with the overhaul despite all opposition caused damage nevertheless.

Retired Supreme Court Justice Anat Baron says the recent legislative blitz is "a continuation of a structured work plan designed to take over centers of power and entrench its rule, by undermining the foundations of democracy, the judicial system, the police and the media." She asserts, "The government cynically exploits its power, acting like it's intoxicated by power and as if there were no tomorrow." Baron warns: "We're on the path to regime change, and the public cannot keep track of all the changes happening at a dizzying pace. In normal times, the streets would be burning, but the public's attention cannot keep up with the tsunami of legislation. It's exhausted and preoccupied with its own affairs, and that's understandable, given our reality."

Among the slew of antidemocratic laws, Baron highlights the law passed last week that, for the first time, allows gender segregation in master's degree programs. She argues it signals a worrying direction in which the government is leading the country. "The new law has severe implications for academia and the public sphere as a whole. I, of course, support ultra-Orthodox men and women pursuing higher education, but the end doesn't justify the means," says Baron. "This law paves the way for gender segregation in other areas as well. We saw just recently that signs for separate sidewalks for women and men were hung in the streets of Bnei Brak. This is the direction."

Prof. Yaniv Roznai also believes that despite blocking most of the overhaul plan, threats to Israeli democracy persist. The strategy has changed since October 7, he says, moving from grandiose proposals to amend Basic Laws to incremental change. Roznai notes that the Supreme Court currently is down to 11 justices, leaving, unlike in the past, a conservative majority. "Judicial independence was also harmed by changing the appointment mechanism for the commissioner for public complaints against judges," he says. "Concurrently, the government tried to appoint a civil service commissioner, highlighting the executive branch's expanding encroachment on independent institutions."

Prof. Medina says that the state of Israeli democracy today is serious on three main fronts. The first is the erosion of trust among government supporters in the law enforcement system. "The systematic incitement against the attorney general and Supreme Court justices bore fruit among this government's supporters," he says.

The second aspect is Ben-Gvir's takeover of the police. "Ben-Gvir made the police act in certain areas according to political considerations – primarily in failing to prevent pogroms by Jews in the territories, in failing to address crime in the Arab community, and in harming the right to protest against the government," says Medina.

Roznai also argues that the trend of politicization in the police and law enforcement authorities is evident. "Although the High Court struck down some of the clauses that expanded Ben-Gvir's control over the police, it left other clauses intact, and Ben-Gvir succeeded in deepening his control through appointments."

In Baharav-Miara's defense, it should be noted that she and her staff invested enormous efforts to restrain Ben-Gvir, and they partly succeeded. She did block the transfer of control over the investigations department to him and curbed his interference in police appointments. The highlight was the struggle against Ben-Gvir's attempt to prevent Rinat Saban's promotion to the rank of chief superintendent. The High Court justices who heard the petitions for Ben-Gvir's dismissal, however, refrained from taking that step and encouraged Ben-Gvir and Baharav-Miara to reach agreements, despite his repeated violations.

Baharav-Miara informed the High Court on Monday that all attempts to reach agreements with Ben-Gvir had failed, accusing him of violating his commitment. She argued, "There's no escaping judicial intervention to protect police independence and human rights."

The third aspect is the most important one: Palestinian human rights. "There's widespread violation of Palestinian rights in detention facilities and prisons, mass harm to innocent people, destruction of homes in the Gaza Strip and the West Bank, holding bodies as bargaining chips, legislating a death penalty law for terrorists, and more," says Medina. "This is an area where the gatekeepers – the attorney general and the court – largely failed to prevent the government from severely violating human rights." He argues: "Apart from its severity in itself, this harm to Palestinians has caused severe international isolation of Israel. The erosion of a public commitment to values of equality toward Arab Israelis, and to the duty to respect the human rights of Palestinians under Israeli control, creates a great danger to democracy."

Prof. Dotan sees a direct link between efforts to block the judicial overhaul and the violation of Palestinian human rights. "The attorney general and the High Court had to defend themselves against Levin's legislation, so they had to neglect the struggle to protect Palestinians and Arab citizens of Israel. That led to Finance Minister Bezalel Smotrich successfully implementing a radical structural change in the territories," he says. "Smotrich took over the Civil Administration, removed it from IDF responsibility, appointed people to important positions and brought about ethnic cleansing in the West Bank. The High Court had to sacrifice everything it does on the Arab-Palestinian front in favor of defending its own mechanisms."

The High Court had to "choose its battles," says Dotan. "After October 7, it was clear to them that defending the rights of security detainees would be suicide. The freedom of expression of Arab Israelis also suffered. Levin put the High Court on the defensive, and the justices told themselves, 'What good will it do to commit suicide over Palestinian rights if the fortress falls?'"

In conclusion, the basic condition for the High Court and the attorney general to continue defending democracy and protecting human rights is preserving their status and powers. This will not happen if Netanyahu, Levin, Ben-Gvir, and Smotrich continue to lead the country. Now their great test is to ensure free and fair elections.

"This will be a difficult test," warns Medina. "The government has an interest in disrupting the elections, giving free rein to thugs to interfere with the voting process, promoting racism, and sowing distrust in the election results. The system approaches this test with alertness, well aware of the threats but weakened."