By: Chemi Shalev
For Benjamin Netanyahu, Donald Trump is a gift that keeps on giving. The U.S. president has abandoned the Iran nuclear deal, moved the U.S. Embassy to Jerusalem, pitched in during the recent election campaign and is about to present a Bantustan-style peace deal that could allow Israel to annex large chunks of the West Bank. And if that weren’t enough, Trump is also making Netanyahu’s mission of undermining Israel’s rule of law that much easier.
Trump helps Netanyahu by consuming most of the attention of the world in general, and of the United States in particular, denying Israel the critical scrutiny that has often kept its leaders in check. Contrary to all of his predecessors, Trump turns a blind eye to Netanyahu’s decisions and policies, internally and in relations with the Palestinians, giving the prime minister free rein to do as he pleases. And while both leaders are on a personal vendetta against the rule of law, Trump makes Netanyahu look tame and rational by comparison.
Both men, after all, are suspected of wrongdoing; both have trashed their investigators and prosecutors; and both are waging war on constitutional norms and on the rule of law. Trump is denying the overseeing powers of Congress and Netanyahu is about to deprive the Supreme Court of its authority to review Knesset laws and, potentially, the decisions of the government itself. But while Trump is out front, in your face and foaming at the mouth, Netanyahu works discreetly behind the scenes, through lackeys and toadies, bobbing and weaving his way to a personal salvation that could spark an unprecedented constitutional, political and social crisis.
All of which means Netanyahu’s machinations are not getting the attention they deserve. His motive may be petty self-interest, but the consequences of his assault on the legal system will be felt by all Israelis, for many years to come. It will divide them, inflame public discourse and demolish the basis for the mutual coexistence that has allowed them to live at peace with each other, despite their deep differences.
Seeking to subvert his criminal investigations, Netanyahu has already succeeded in eroding public confidence in the police and state prosecutors. After failing to convince them that he is completely innocent, as he claims, Netanyahu is now hell-bent on securing immunity from what seems like the attorney general’s near-certain indictment. To achieve his goal, Netanyahu has placed a time bomb inside Israel’s constitutional core that could destabilize Israeli democracy and pave the way to authoritarian rule.
Netanyahu’s battle plan includes two distinct arenas: In the first, he will secure Knesset immunity. In the second, his right-wing coalition will deprive the Supreme Court of its power to overrule the Knesset and thus revoke Netanyahu’s new immunity. In the interim, Netanyahu is playing for time by postponing his pre-indictment hearing, mounting bureaucratic hurdles and even pretending to be in a feud with his lawyers, all the while claiming he is the victim of a “political witch hunt” conducted by his political rivals on the left.
The question of Netanyahu’s parliamentary immunity has captured most of the public and media’s attention, but it is nothing more than camouflage. For months, Netanyahu and his confidants have been floating various proposals for new laws that would grant Netanyahu automatic immunity, ignoring the fact that under current law and with his rubber-stamp majority in the Knesset, such immunity is his for the asking.
The greater challenge facing the prime minister is to ensure that the Supreme Court won’t revoke his immunity, no matter how unreasonable, unconstitutional and politically motivated it is deemed to be.
This is where Netanyahu’s personal interests converge with the ideological goals of the annexationist right and the ultra-Orthodox parties that make up a large part of Netanyahu’s coalition. He is seeking refuge from the law and they are yearning for freedom from the Supreme Court and the shackles of international law, human and civil rights, as well as principles of equality and decency that the court occasionally imposes on government policies and decisions.
In exchange for placing Netanyahu above the law, as if Israel were a tin-pot banana republic, his coalition allies will be able to confiscate land, build new settlements, oppress Palestinians, deny equality, stifle internal dissent and impose religious rule with impunity and to their heart’s content.
Netanyahu and his collaborators base their support for the so-called “override clause,” which would negate or at least severely restrict judicial review, on a series of bogus arguments that his supporters have swallowed hook, line and sinker. They speak of a “judicial dictatorship,” even though the Supreme Court has struck down a grand total of 18 laws in Israel’s 71 years of existence. They swear by the existence of a “leftist junta” that supposedly controls the Supreme Court and persecutes Netanyahu — but have yet to produce a scintilla of proof for their claims. They compare Israel to countries in which the Supreme Court’s oversight authority is also restricted, ignoring the fact that such countries either have a completely different government system or are sliding toward authoritarianism, like Poland, Hungary and, increasingly, Israel itself.
Their most disingenuous claim is that the Supreme Court is an obstacle to good governance and renders the government impotent to implement its policies, when in fact the Israeli government is already substantially more powerful than most of its counterparts in democratic countries.
For years now, Israel’s three branches of government have dwindled to just two: the executive and the judicial. Just as the GOP has turned into Trump’s cheerleading squad and congressional Republicans have abdicated their independence to bend the knee to the White House, so has Likud transformed from a vibrant political party with firm beliefs into a collection of groupies whose only measure is their worship for Netanyahu. And given that Likud takes orders from Netanyahu and the coalition is controlled by Likud, Israel’s legislative branch has become the prime minister’s personal fiefdom.
Israel’s Supreme Court is the only remaining check on Netanyahu, his docile ministers and the kowtowing Knesset. And even though the court today is far more conservative and restrained than it was two decades ago — when the so-called constitutional revolution of the court’s then-President Aharon Barak was at its zenith — Netanyahu and his allies have succeeded in convincing the Israeli right that the court’s interventions are numerous and consequential, obstructing government policies and even imposing restrictions that endanger the lives of Israeli soldiers at the battlefront, as former Education Minister Naftali Bennett often claimed. Some of them are so persuasive, they’ve started to believe their canard themselves.
A debate about the proper scope of the court’s authority to strike down Knesset laws and to revoke government decisions may have been possible and perhaps even desirable if Israel were a normal country and if its politicians were known for their calm and
moderation. But Israel is far from normal for a host of reasons, including its 52-year occupation of undesignated territories and millions of disenfranchised Palestinians, as well as the subjugation of personal and religious life to the diktats of Orthodox Judaism. And far from sounding a voice of benevolence and reason, its government and parliament are increasingly nationalistic, ethnocentric and antidemocratic, not to mention shrill, divisive and, in some cases, downright demented.
Neutering the Supreme Court so that Netanyahu can escape indictment is like throwing out the baby with the bath water or, given Sara Netanyahu’s love for the elixir, the pink champagne with the cork. It would give the government and Knesset unbridled authority to carry out their policies, even if these collide with basic norms of fairness and decency, which they often do.
Even worse, in times of security crises or national emergencies, it would allow right-wing politicians to run wild on their habitual outbursts of incitement and hysteria, which usually include proposals for harsh measures against their perceived enemies — from Palestinian terrorists to anyone, including former army chiefs of staff, who fails to worship the ground Netanyahu walks on.
Such a drastic departure from Israel’s rules of governance and constitutional norms is bound to have a profound effect on its actions, policies and social cohesion. Netanyahu’s critics are rightfully alarmed and up in arms about his designs, though the extent of their wrath will get its first measure in a mass demonstration organized by the Kahol Lavan opposition on Saturday night.
If Netanyahu follows through, Knesset approval of the “override clause” is bound to create civil unrest and to spread turbulence throughout Israel’s civil service and legal system. The crisis could be compounded a hundred times over if the Supreme Court decides to strike down the clause itself, sparking an unprecedented and potentially paralyzing constitutional stalemate.
By their very nature, such heated battles — especially those that are part of overarching “culture wars” — usually polarize politics, radicalize public discourse and potentially deteriorate into violence. Netanyahu and his coalition will be sorely tempted to try out their new, Knesset-authorized, Supreme-Court free “license to kill” in order to stifle dissent and to rebuff the inevitable accusations of the extreme right about the government’s “weakness.” It is a vicious circle that can easily get out hand.
And while one is cognizant of the personality cult that Netanyahu has fostered, which rewards absolute loyalty and punishes any deviation from his line, as well as the deep ideological hostility of the religious right toward the Supreme Court and other manifestations of liberal democracies, it is still dumbfounding to realize that Netanyahu seems assured of success.
Right-wing lawmakers who support the “override clause” must believe they will rule forever, because otherwise their opposition will inherit the same draconian powers once it gains power and turn them against their creators. Under the new rules, of course, and with nothing to stop them anymore, the current coalition could simply decide one day that elections are superfluous and that Netanyahu should remain in power for life.
You might think that such a scenario is alarmist and inconceivable, which is how right-wingers describe the center-left’s warnings about the potential fallout of the “override clause” for Israeli democracy. On the other hand, if someone had said a few years ago that the Knesset would one day carry out what is essentially a constitutional coup d’état just to allow one prime minister to escape justice, you would have consigned them to the nut farm. Which is what Israel will become anyway, once Netanyahu’s time bomb detonates and obliterates what it used to be.
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