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From War to Judicial Coup: Netanyahu’s Course for the Titanic

A Coup in Review

October 20, 2023

Civilians take cover from rockets near Tel Aviv. Photo by Yossi Zamir, Shatil stock

Amidst widespread public rage with the government's slow response to civil needs in the aftermath of Hamas's horrific October 7th attack, Prime Minister Benjamin Netanyahu made only a few, mostly pre-recorded, statements. Netanyahu, emphasizing the word "we," promised in one public statement, "We will investigate everything thoroughly," hinting at his intention to remain in office.


Netanyahu did not clarify why he should remain Israel's leader, given that in 2008 he had argued that then Prime Minister Ehud Olmert must resign, famously stating, “you don't give the captain of the Titanic another Titanic.”


Two weeks into the war, the majority of senior army officials have taken responsibility for Israel's military unpreparedness. Some ministers also conceded that the government was partly responsible for the failures and mentioned that a thorough investigation would commence after the war's conclusion. Again, coalition speakers are emphasizing that the failures leading up to October 7th will be addressed by the existing administration.


At the same time, there's mounting evidence suggesting that the government is consolidating its control within the public service through questionable appointments and controversial administrative actions, and not relenting in its push for a judicial coup.


The graves of the soldiers killed in the War on Mount Herzl

Risk of Excessive Power

Given the wartime situation since October 7th, it seems that Netanyahu's administration has acquired more authoritative power in a single day than previously achieved by ten months of disputed legislative overhaul.


During national crises, the Israeli government can enact emergency regulations without parliamentary approval, as per the Basic Law: The Government. These regulations, which can override existing laws, can remain in effect for up to three months. In extreme cases, the Prime Minister himself can enact these emergency laws.


Even though emergency regulations grant extensive powers, they should be employed judiciously, especially during wartime. Under normal circumstances, if the Knesset is operational, as it currently is, the government should refrain from invoking these regulations. Contrarily, Communications Minister Shlomo Karhi has advanced emergency regulations, allowing him the authority to shut down media outlets for "security reasons" without any formal due process.


A more extreme draft of these regulations, revealed earlier, would have given Karhi the power to detain individuals for disseminating information detrimental to the "national morale."


While Karhi disavowed this authoritarian draft, he still pushes for regulations that would curtail press freedom, despite a plethora of existing laws to address such challenges. With the Israeli police already investigating over 100 cases of incitement and support for Hamas on social media, resulting in several indictments, the necessity of Minister Karhi's emergency regulations is brought into question. Given that existing laws address his concerns, the proposed regulations seem redundant.


Political Interests in Times of War

Clearly, the Prime Minister’s Office is concerned about relinquishing power to anyone not strictly aligned with the interests of Netanyahu. In fact, the government appears to be persistently concentrating on narrow political interests. Here are several examples from the last few days:

  • Yossi Shelly, the Prime Minister's Office's general director and a close aide of Netanyahu, has received criticism for his management of the civilian aspects of the crisis. Despite the need to enhance government coordination, Shelly reportedly thwarted efforts to appoint a former senior government official as a special coordinator.

  • Government funds continue to flow generously to ultra-Orthodox parties, but a financial aid plan for struggling private businesses is still lacking.

  • In the Ministry of National Security, minister Itamar Ben-Gvir of Otzma Yehudit has been actively campaigning against the civil service commissioner in an attempt to secure the appointment of Mr. Eliezer Ben-Harosh as the director general of the ministry. Ben-Harosh reportedly lacks the relevant experience for the role. Moreover, the civil service commissioner has opined that Ben-Harosh isn't even suited for the director general position on an interim basis.


The Judicial Coup Is Still Here

Amid the backdrop of war, Chief Justice of the Supreme Court Esther Hayut, retired as she reached the age of 70, in line with legal stipulations. Additionally, earlier in the month, Justice Anat Baron also retired. Both Hayut and Baron were known for their liberal inclinations. Their departures have tilted the Supreme Court towards a more conservative stance.


Currently the Supreme Court is operating with a partial bench, having only 13 justices out of a full panel of 15.


No one was appointed to replace Chief Justice Hayut. Deputy Chief Justice Uzi Vogelman has temporarily assumed the role of Acting Chief Justice.


The situation stems from Justice Minister Yariv Levin's refusal to convene the Judicial Selection Committee before the judicial overhaul gives the coalition power to appoint its preferred judges.


Even amidst the tumult of war, Levin remains unyielding in his commitment to the judicial overhaul. A preliminary oral hearing, scheduled for Sunday, is aimed at compelling Levin to assemble the Judicial Selection Committee. However, just prior to the date when Levin was expected to present his counterarguments to the court, he requested a delay, citing the ongoing conflict as the reason. When the court learned that multiple attorneys associated with the case were conscripted for reserve military duty, the hearing was rescheduled to mid-November.


With Israel enveloped in the uncertainties of war, a few facts emerge with certainty: Prime Minister Netanyahu has no inclination to shoulder personal responsibility for the failures leading up to the dark Saturday of October 7th . He is determined to retain his leadership position, and his coalition remains unwavering in its quest to implement an anti-democratic judicial coup.


 

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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