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Democracy on Pause: A Quiet Judicial Coup Silences Dissent

A Coup in Review

November 10, 2023



Knesset Israel
Photo by Yosi Zamir, Shatil Stock

Prime Minister Benjamin Netanyahu, during a recent wartime press briefing, sought to project the impression of a suspension of the judicial coup. However, reality belies his assurances. Justice Minister Yariv Levin shows no indication of deviating from his primary objective— complete subjugation of the judiciary and monopolization of judicial appointments by the government.


Netanyahu and Levin spent almost a year widening national divisions — ten months of internal conflict have passed, over a thousand casualties died in the horrible attack by Hamas on October 7, and a month of warfare has gone by. Throughout this time, Levin has been diligently fortifying the foundations of the judicial overhaul, laying the groundwork to further undermine the pillars of Israeli democracy when the opportunity next presents itself.


Against the backdrop of a petition waiting for oral arguments before the Supreme Court, Levin finally announced last week that he will agree to convene the judicial appointments committee.


However, it would be gravely misguided to interpret Levin's declaration of his intention to convene the committee as a sign that the political upheaval is concluding.


The reality is quite the opposite.


Levin's notification to the Court emphasizes that the judicial appointments committee will only discuss “widely agreed” topics. This effectively precludes any immediate deliberation on filling the two vacant Supreme Court seats or selecting a successor to retired Chief Justice Esther Hayut.


The strategy employed by Levin can be likened to a protracted siege, akin to the recent military encirclement of Gaza City by the IDF. His announcement to the Supreme Court offers a mere trickle of concession, akin to the IDF’s brief daily humanitarian cessation of fire, and under the strict condition that any judicial “humanitarian aid” does not re-empower the judiciary, particularly the Supreme Court.


Despite many urgent legislative demands to address the war's economic aftermath, Levin's focus remains elsewhere. Throughout a month of warfare, his ministry has been preoccupied with legal maneuverings designed to delay the convening of the judicial appointments committee. For instance, the Ministry of Justice has proposed legislation extending the tenure of the Commissioner for Complaints against Judges, Uri Shoham. This was a calculated move to prevent the mandatory convening of the committee to appoint his successor.


Furthermore, Levin reached a provisional agreement with Acting Chief Justice Uzi Vogelman to facilitate the temporary return of 14 retired judges. This was supposed to be a stopgap measure to offset the growing shortfall in judicial personnel, estimated at nearly 100 vacant positions, without having to convene the appointments committee.


Levin obviously recognizes the urgency, as the stalemate he has engineered cannot continue indefinitely. With each passing day, more judicial retirements occur, deepening the impact of the judicial coup on the judiciary, with the Supreme Court bearing the most significant brunt.


As Levin’s agenda for the upcoming meeting of the judicial appointments committee indicates, this will be a technical meeting with no appointments expected to be confirmed.


Levin's endeavors are not the only ones. MK Simcha Rothman, a key figure in the coup, persistently argues that the Knesset serves as an effective check on the government. The past month, however, starkly demonstrates the fallacy of this claim.


The Knesset’s “parliamentary oversight” is a sad joke, especially in the case of ministers in charge of the settlements in the West Bank and national security.


MK Zvika Fogel of Otzma Yehudit, despite the apparent conflict of interest, chairs the National Security Committee, overseeing the ministry guided by his political senior, the chair of his own party, Itamar Ben Gvir.


A similar incongruity can be seen in the appointment of MK Zvi Sukkot to oversee the committee responsible for the Judea and Samaria region. He is supposed to oversee the head of his own party, Minister Bezalel Smotrich.


What would be considered a serious lapse in judgment in any other organization is deemed acceptable by the current extreme right coalition. Instead of acting as a check on ministers with tendencies to inflame their political base, the Knesset is turning into a band of inciting cheerleaders.


This skewed “oversight” is mirrored in the field. For example, Minister Ben Gvir’s insistence on appointing an unqualified director general, proposed changes to regulations over opening fire within Israeli territory, and the temporary prevention of protests near the Prime Minister's residence illustrate a concerning trend.


When called to exercise oversight, MK Fogel removed a Civil Rights Association representative from a pertinent discussion, undermining the intended checks and balances.

The current coalition-led Knesset exhibits a troubling pattern: instead of providing genuine government oversight, it acts as an enabler for the extreme right's ministers, further destabilizing democratic processes.


Unfortunately, recent decisions of the Supreme Court, traditionally a stalwart defender of free speech, raise concerns among those who value democratic freedoms. In a departure from its usual role as a safeguard for freedom of expression, the Court upheld a police decision to prohibit an anti-war protest in two Arab towns in northern Israel. This decision stands out as uncharacteristically conservative for the Court, which typically robustly upholds the right to hold demonstrations.


The justification provided was that the demonstration posed a threat to public order and would overextend the already burdened northern police district, which is grappling with ongoing rocket attacks from Hezbollah in Lebanon. Notably, the Court did not even consider the alternative of allowing a scaled-down, symbolic protest.


This ruling coincides with a broader pattern of suppression of dissent under the current right-wing coalition government. By promoting national unity as a priority, they are paradoxically undermining the very foundations of a healthy democracy, which relies on active and constructive criticism, checks, and balances. Any form of dissent is not merely dismissed but increasingly treated as an act of disloyalty. This trend represents a significant shift towards stifling opposition voices, a move that could have far-reaching implications for civic freedoms in Israeli society.


 

Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.


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