Israeli Prime Minister Benjamin Netanyahu has been on a blitz of foreign media interviews this week, appearing on CNN, NBC, and Fox. The purpose has been to diminish global shock at his project of turning Israel into an authoritarian democracy where rights, contracts, and due process exist at the will of the executive.
It has been a stunning display of mendacity that clearly assumes ignorance on the part of faraway interviewers, as Netanyahu avoids local media and foreign correspondents based in Israel.
Netanyahu’s fundamental narrative is that it is no big deal to remove the Supreme Court‘s ability to carry out judicial oversight of government actions based on the long-established „reasonableness” standard—that this was a tweak, almost cosmetic and practically benign, aimed at restoring „balance” between the executive and the judiciary that had gone haywire.
The truth is that the reasonableness standard, a cornerstone of the legal systems in countries with Common Law judicial traditions from Great Britain to New Zealand (including India, Singapore, South Africa, and others), is critical to discouraging rampant corruption, cronyism and patronage of the kind Netanyahu’s coalition barely hides its plans for. And the law passed went much farther than even the harshest critics of the Supreme Court ever imagined: instead of trimming away judicial intervention in policy issues thought best left to the Cabinet, or appointment of ministers, the law simply eliminated the reasonableness standard, period.
Moreover, the legislation tabled by the coalition in January, which caused bedlam to erupt, included the government effectively appointing the judges and also being able to overrule any Supreme Court decision via a simple majority vote in parliament.
The proposals mooted included removing fraud and breach of trust from the list of crimes of which politicians can be accused. Unsurprisingly, these charges are two of the three counts Netanyahu faces in court, with the third being bribery.
That’s why Netanyahu prefers interviews with foreign bloggers like YouTuber Lex Fridman, or the sympathetic celebrity psychologist Jordan Peterson, or Piers Morgan. They cannot refute his jackhammer agitprop and are inclined to be respectful.
Meanwhile, hundreds of thousands of Israelis are taking to streets weekly to protest the assault on their democracy; all polls consistently show at least two-thirds of the public oppose his plans; and a series of indicators suggest a five-alarm fire in the economy. Investments are down by two-thirds compared to last year, the shekel is down 10 percent compared to the beginning of the year, and 80 percent of new startups are being registered in the U.S., costing the Israeli government an important source of revenue. A massive flight of capital and a brain drain are already underway.
This is a genuine tragedy, happening in a fairly important country.
Here is a refutation, therefore, of specific points Netanyahu made in his recent interviews.
Netanyahu told a fawning interviewer on Fox that Israel’s judges are „not elected and they’re often self-selected.”
The truth is that no Israeli judge is self-selected. Not one. There is a no pathway to such a thing. Judges are appointed by a committee that includes two sitting judges (not necessarily the one departing), two members of the Bar Association (which Netanyahu’s government now wants to disband) and five politicians from the coalition and opposition—meticulously balanced to prevent any one group from enacting crony corruption. Netanyahu’s „reforms” plan to hand the appointment to politicians from the coalition answerable to the prime minister, effectively uniting the three branches of government.
Netanyahu told CNN that the Basic Law eliminating the reasonableness doctrine was passed with a „supermajority,” meaning that to overturn it would be „like the U.S. Supreme Court would take a constitutional amendment and say it’s unconstitutional.”
The truth is that there was nothing that can be defined as a „supermajority.” The law was passed last week by Netanyahu’s coalition with 64 of 120 votes with the entire 56-member opposition walking out. Moreover, this majority is the result of splits in the opposition which caused 6 percent of the vote to be wasted in a November 2022 election that was a tie and in which Netanyahu presented no platform at all, never mind one calling for an overhaul of the system. Indeed, Knesset Speaker Amir Ohana admitted recently that the judicial „reform” plan was not even presented to the ruling Likud Party until after the government was formed in December.
If Israel’s system needs reforming, it’s in the ability of the government to declare anything a „Basic Law” and then claim that reversing it is an assault on something constitution-like. In the United States, of course, the bar on constitutional amendments is so high that writing a new one is currently close to inconceivable.
Netanyahu told NBC that „the judiciary has basically arrogated to itself nearly all the power of the executive branch and the legislature.”
The judiciary cannot declare war, make peace, impose taxes, or pass a budget. It cannot perform any of the powers of the executive. It is true that in the early 1990s the judiciary, with the acquiescence of the Knesset, began to be more aggressive on judicial review. This is justified by Israel’s extraordinary status in not having a constitution (because the Jewish religious parties won’t allow one), and because millions of non-citizen Palestinians live under occupation in the West Bank (and in the past Gaza).
Since then, the court has interfered in exactly 22 laws and ruled based on „reasonableness” only a handful of times. These rulings included forcing the government to build bomb shelters near Gaza and blocking the appointment of a twice-convicted felon to the posts of interior and health Minister, overseeing massive funds. It was reasonable.
Netanyahu told Fox that his reforms mean „Israeli democracy has been strengthened, not weakened” and told CNN that „we don’t want a subservient court—we want an independent court.”
The truth is that Netanyahu argues that removing judicial oversight means elected politicians can decide anything. That is tyranny of the majority and anathema to real democracy. Moreover, laws the coalition still hopes to pass—and that will pass, unless major forces step in—include not only appointing the judges but overturning these puppets’ decisions at will, with a simple parliament majority. They also want to weaken the attorneys-general who, in Israel’s existing system, are major gatekeepers in each ministry.
Netanyahu told his non-expert interviewers all this has been shelved—but it has merely been delayed. If Netanyahu gets his photo-op with President Biden later this year, this further legislation will be forced through with Netanyahu claiming the U.S. sees no problem with any of it.
Netanyahu described opponents of the „reforms” as a small minority.
The truth is that all polls show that at least two-thirds of the public opposes the plans, and that Netanyahu would be crushed in an election today.
Netanyahu told all that his assault on the judiciary has nothing to do with his ongoing trial for bribery, fraud, and breach of trust.
The truth is that Netanyahu was a champion of a fully independent and powerful court until the very moment he went on trial, and that his about-face occurred in 2019 upon the decision to indict him. It was then considered inconceivable that a political leader would cling to power; indeed, Netanyahu himself advised predecessor Ehud Olmert to reign merely because he was being investigated by police in 2009.
The hypocrisy of some politicians can be stunning, like a superpower. A normal person would not be capable of it—the dishonesty feels wrong.
In the spirit of marveling at this spectacle of shamelessness, an appropriate way to end this article is with the words of Netanyahu himself in 2012, at a ceremony marking the retirement of a previous former chief justice, Dorit Beinish:
„I believe that a strong and independent judiciary is what enables the existence of all other institutions in a democracy. We all know that there are non-democratic regimes that … speak of human rights loftily. But do they respect human rights in practice? The answer is no.
„But show me one democracy anywhere where there is not a judiciary that is strong and independent. Where rights cannot be guaranteed. This is why I will continue to do all I can to protect a strong and independent judiciary.”
