Last week the coalition passed the first reading of the first parts of their plan for major changes in the Israeli judicial system. Supporters of this plan maintain that it is necessary to protect democracy – the rule of the people. The Knesset is chosen by the people and should therefore always have the ultimate say, they argue, and this legislation will strengthen the Knesset.
Many who object to this plan warn that it will have a deadly effect on Israel’s democracy. These opponents are mainly focused on the detrimental impact of the plan on human and civil rights, including the rights of Arabs, women and those in the LGBTQ community. They fear the majority’s tyranny and note that it is the courts’ role to protect the rights of these minorities, often from the government. When the courts are subordinate to the government, there cannot be any effective protection.
And indeed, the coalition’s plan was carefully designed to prevent any possible way for the court to stand in the way of the government in any situation.
What the coalition has not told the public is that it’s not only minority rights that are at stake. Placing all the power in the hands of the government can easily lead to the loss of the majority’s rights, not only those of minorities. With unlimited power and no restraints, the government can easily reach the conclusion that it does not need the majority’s backing. In other words, under the proposed “reform” if implemented, the government may decide to postpone or cancel the next elections, which are due no later than four years from the previous elections. It is no longer certain the next elections will be held on time – if at all.
How is that possible?
The Basic Law: The Knesset stipulates mandatory elections every four years. Furthermore, section 9A of that basic law, requires a majority of at least 80 of the 120 members of Knesset to delay the elections beyond four years from the previous elections, and only in very specific circumstances, and only for the period in which such circumstances exist. Sections 44 and 45 of that basic law require a majority of 80 members in order to change section 9A.
If so, how can they cancel the elections? After all, we know that the current coalition is not supported by 80 members of Knesset. Well, they have demonstrated more than once that if the rules don’t let you do it, you change the rules. If the Basic Law in section 9A requires a specific majority, the Basic Law will be changed. If sections 44 and 45 require that same majority in order to change section 9A, they will change sections 44 and 45. Some jurists may write learned dissertations as to the legality of such changes, but they will be of academic interest at the most.
The ‘reform’ is well planned. A new provision states that the Supreme Court will not have the authority to rule as to the legality of provisions in Basic Laws. The change that would cancel sections 44 and 45 would be part of a Basic Law, and therefore the court cannot intervene. If that is not sufficient, the Overriding Passage enactment will grant the Knesset, in a 61 majority vote, the power to override a court decision that would dare to rule that the change is illegal. If even that does not suffice, another new rule requires any Supreme Court decision on the legality of legislation to be by a unanimous decision of all (or in a softer version – almost all) Supreme Court judges. As yet another part of the “reform” made sure only government loyalists are appointed to the court, it will be impossible to reach such a vote within the Supreme Court.
The bottom line is that if the government decides it does not want to hold elections within the timeframe prescribed today by law, or at all, there is nothing there to stop it from doing so.
The public must understand that in the name of democracy and the will of the people, the coalition is changing the rules in a way that may deprive all of us, majority and minority, of our fundamental right to vote and choose our representatives.
If that is not the end of democracy, what is?