Judicial Reform? Oh, Please

I understand the people who are clamoring for judicial reform. Yes, the high court and arms of it like the Attorney General have essentially become an unelected, self-appointed (and self-anointed) arbiter of all in the State of Israel.

But judicial reform? Really? Try and think it through. The Knesset passes judicial reform. Let’s say. What does the high court do? Overturn it, naturally. Immediately. Trying to take our country back from the people who stole it can’t be done using the very tools that they sneer at. Laws? Written by mere representatives of the people? It is to laugh.

No, passing judicial reform is not the answer. The answer lies in how the judicial junta took over in the first place. And who is the most responsible for it.

Responsibility

After Aharon Barak, the lauded “hero” of the judicial revolution, the person most fundamentally to blame for the high court’s takeover of Israel is Binyamin Netanyahu.

I hear you gasping. “Netanyahu?!” you laugh. “The same Netanyahu whose government pushed judicial reform until the Kaplanistas nearly launched a civil war over it? That guy?”

Yes. That guy.

Aharon Barak could have said and written anything he wanted without it meaning a thing if not for the sheep-like acquiescence of one government after another. All he did was assert powers that are nowhere granted to the high court in Israeli law. You can’t just do that. Not unless you’re a dictator. Louis XIV of France is supposed to have said, “The state, it is me.” Aharon Barak effectively made the claim, “The law, it is me.” But Louis XIV had an army. All Aharon Barak had was a series of meek Prime Ministers, who were either afraid to stand up to him, or actually welcomed the transfer of authority and responsibility to other shoulders. You can’t be blamed, after all, if the court tied your hands.

And in the roughly 30 years since Aharon Barak led his bloodless (sort of) revolution, Binyamin Netanyahu has been Prime Minister for almost 20 of them. No one else in the country comes close to the guilt Netanyahu bears for the creation and continued existence of the judicial junta.

But… but…

“But,” you may ask, “what could he have done?”

Very simple. If the high court announced tomorrow that the Knesset was disbanded, all Knesset members and cabinet members were fired, no further elections would be held, and henceforth, all law and directives in the country would be issued directly by the high court, what would he do?

What would anyone sane do?

I mean, laughter seems like it would be appropriate. Maybe a public announcement to the effect of this:

We in the State of Israel pride ourselves on freedom of expression. Members of the high court do not lose that freedom upon joining it. They have the right to express their opinions, however ridiculous those opinions may be. But this is still a nation run according to laws. Laws written and passed–as is customary in democratic countries–by an elected legislature.

The Knesset wrote and passed the very law that established the high court. And that law determines the authority of the court. It does not grant the court the prerogative to extend its authority beyond what was established in law.

We recognize the recent, somewhat bizarre, statement issued by the high court as an expression of personal opinion, because the court is simply not empowered to make such statements as anything beyond that.

That’s what a sane government would say to such an outrageous coup attempt. And that’s what a sane government should have said the very first time Aharon Barak or his followers deviated from their legally established powers.

Every single time that the court seized power that did not belong to it and the government allowed it to go unchallenged, it became complicit in the takeover.

They started by interfering in day-to-day laws, but they’ve extended their reach to strategic and military decisions, to the point where their lawlessness has become a clear and present danger. They claim that they are entitled to overturn Knesset law based on Basic Laws, which they maintain carry constitutional authority. But they demostrated, by their overturn of a Basic Law, that they don’t actually believe that. It was simply an assertion that they relied on the government not to challenge.

It has grown intolerable. It never should have been tolerated in the first place. It’s time, and long past time, for a stop to be put to it.

Fine. But how?

That’s a fair question. After all, I started this article by pointing out that any judicial reform measures passed by the Knesset would simply be overturned by the rogue court.

But the answer is fairly simple. The only tool necessary in order to fight them is something that all humans have: a spine. The example I gave above of what a sane government might respond to a grotesquely blatant coup by the high court is precisely what any rational government would do from now on.

Let’s take a case in point. A very recent case, and a very raw one, too.

Israel’s Central Election Committee, basing itself on the law, disqualified the anti-Israel Ra’am and Joint List parties from running in the recently completed election. According to Israel’s Basic Law: The Knesset 7a, a party or individual can be disqualified from running if they are found to have:

a. Incited to racism
b. Denied Israel’s existence as a Jewish and democratic state
c. Expressed support for armed conflict against Israel

Any of those three is grounds for disqualification, and the two Arab parties are egregiously guilty of the second and third. The first is subjective, depending on what any given person considers to be racist, but the other two are clear and subjective.

The high court overruled the CEC. They claimed that there was no evidence of the parties denying Israel’s existence as a Jewish and democratic state, and that in any case, they didn’t want to disenfranchise a large part of the population.

But every single Israeli citizen resident in Israel would still have been able to vote in the election even if these two parties were absent from the ballots. They wouldn’t have been able to vote for the destruction of the State of Israel, but that’s not disenfranchisement.

To repeat a quote that’s gone around for a long time, but is especially pertinent today, democracy is not a suicide pact. Democracies have a right, and an obligation, to protect themselves from those who would cynically use the democratic process to destroy them.

The result is that almost 10% of the newly elected Knesset wants to destroy Israel. And that’s crazy.

The government must refuse to accept lawless decisions by the high court. Elections must be held again, and this time, without the participation of the pro-Hamas parties.

As of now, only the Communications Minister, Shlomo Karhi, has shown the spine to firmly reject the lawlessness of the judicial oligarchy and their tyrannical seizure of authority they don’t have. The rest of the government needs to follow in his footsteps and rather than trying to legislate away those who ignore laws, simply stop allowing them to do so.