When Truth No Longer Matters: Kohelet Policy Forum

The Kohelet Policy Forum recently released a video infomercial “explaining” Yariv Levin’s proposed judicial upheaval, supposedly “simplifying” the “complex” issue, that has had hundreds of thousands of Israelis protesting in the streets every week, all over the country. It would be an understatement to say it was an affront to one’s intelligence. The amount of sophistry, mistruths, and misrepresentations they manage to cram into 2.11 minutes is quite astounding. I decided to debunk the video and expose its insidious content.

First off, I found the irreverence of the video with the subliminal psychological demonization of the judiciary offensive. Goebbels could not have done it better. By depicting the judges as evil witches hovering over everything on a flying broom and with a gavel instead of a wand, which use to cast a spell and strike down legislation on a whim, they showed that they have absolutely no respect for our country’s Courts, our judges or the rule of law.

Image of the Kohelet video (Courtesy of the Times of Israel)

1. They claim that the main goal of the proposed “reforms” is to restore “checks and balances” between the legislative, executive and judicial branches.

• However, Kohelet fails to mention that there is no separation in Israel between the executive branch and the legislative branch. In Israel’s system, the Prime Minister and almost all the Cabinet Ministers are Knesset members – ie. legislators! And since the Prime Minister is the leader of the biggest party in government and of the majority coalition, the legislature and the executive are essentially one and the same. Therefore, no no checks and balances between the executive branch and the legislative branch exist. (And, since Netanyahu, who has purged the Likud list of any dissenting voices against him within his party list, no-one dares express a different opinion to Netanyahu).
• Thus, the sole branch of government that can act as a check on the power of the executive-legislative branch, who act as one, is the judiciary. If you take away the judiciary’s independence and subjugate it to the executive-legislature, there will exist no balance at all, and no checks on the power of the coalition in power.
• Without the independence of the judiciary, and with the executive-legislature’s ability to vacate any Court decision they don’t like, with a simple majority of just 61 votes, the government would have unlimited power;

It would be able to pass laws to strip citizens of their rights to stand for election, or even to vote. Or, it could pass laws that manipulate the election process to keep them in power.
These proposed “reforms” essentially strip the judiciary of any substantial authority.

Israel would no longer be a democracy.

2. They claim that the reforms “enjoy solid public support” This is not true! The total number of popular votes cast for the coalition parties were 2,304,964. The number of popular votes cast AGAINST this coalition were 2,331,788. How can you call that “solid support”? Certainly nowhere near 59%!
3. They assert that “Over the last two decades the Judicial branch’s powers cannot be found in any other democracy in the world” . This is sophistry, and misleading, done by removing this situation from the context unique to Israel.

Almost every other democracy in the world has a two house system that ensures legislative review. These countries include Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Canada, Germany, India, Malaysia, Mexico, Nepal, Nigeria, Pakistan, Russia, Switzerland, and the United States. https://en.wikipedia.org/wiki/Bicameralism#:~:text=Some%20countries%2C%20such%20as%20Argentina,to%20their%20federal%20political%20structure.

Israel has no upper house to perform legislative review. Thus, the Supreme Court, by default, is reluctantly forced to perform this task. And yet, despite that, in the last 30 years, only 22 laws have been annulled, less than 5% (and in most cases only one clause in the law). Here is the list of the laws that have been annulled. Attached is a list of the laws that the Supreme Court annulled. Tell me that the annulment of these laws are unjustified, or that any other “democracy” in the world would have acted any differently. https://en.idi.org.il/articles/31874.

4. In a stunning accusation they say that “Sitting Supreme Court justices have an effective veto over the appointment of new justices”. This is a misleading, half-truth.

The Judicial Appointments commission is made up of 9 members:

.   Justice Minister – Chairman

• Cabinet Minister, chosen by the Cabinet.
• Two Knesset Members, chosen by the Knesset (Since 1992 they usually appoint one member from the coalition and one from the opposition).
• Two members of the Bar Association.
• The Chief Justice, and two other judges of the Supreme Court.

As you can see, the committee is comprised of 3 justices, 3 representatives of the ruling coalition, two members of the Bar Association and one member of the opposition.

To appoint a judge, a candidate needs 7 votes. Therefore, even assuming that all the justices vote as one, they are not the only ones who have power of veto. The representatives of the ruling coalition also have the power of veto! Withholding this important piece of information is an intentional half-truth, biased to mislead the public. It is a gross misrepresentation of the power of sitting judges, insinuating that there exists an imbalance, when balance actually exists!

Chief Justice Esther Hayut and Yariv Levin, Justice minister (Courtesy of the Ties of Israel, Flash 90).

5. Ridiculously, they claim – with a sense of authority – that “The court can use vague claims of unreasonableness to overturn any government policy”. Misinformation.
   a) This statement makes it seem as if the Courts can actively interfere in government policy. They cannot! The Court needs to be petitioned in order for it to be able to debate the case at hand, and the petition has to be specific, with substantiated grounds of appeal. That cannot be construed as interference.
   b) The standard of reasonableness is never vague; the premise needs to be clear and focused as to why the petitioner is appealing to the courts and why he/she considers such policy unreasonable.
   c) the legal standard of reasonableness is a basic and essential legal test that asks whether the decisions made were legitimate and designed to remedy a certain issue under the circumstances at the time. Its roots lie in English law, but it is common in many other democracies. Its purpose is to prevent the government from passing entirely arbitrary decisions or from acting in an obviously unreasonable manner, and abusing its legal powers.

Removing this standard removes any ability for oversight of government decisions. How can you do that and still call Israel a democracy?
d) The standard of reasonableness is the precept that provides legal standing in the courts – meaning that they have the right to petition the court. By removing this standard, citizens and organizations would no longer have any legal standing, which means that they would be unable to appeal to the Courts. We would have no legal recourse to protest prejudicial government policies.

6. They claim that the Supreme Court can “Disqualify inconvenient civil service appointments”. However, the only cases of disqualification of civil service appointments were in the cases of brash and blatant political appointments of candidates clearly unqualified to fulfill a professional position, as deemed by the civil service Commissioner and his committee.

7. They continue in this vein and accuse the Supreme Court  of “ declaring that Israel’s basic laws be its constitution and then uses them to annul ordinary statutes”. Israel does not have a constitution. Instead it has a set of “basic laws” which act as a platform of our rights, as generally outlined in our Declaration of Independence, which would be similar to Constitutional rights in other countries. The Court DOES NOT arbitrarily annul other statutes, but when these laws contradict existing laws and impinge on our basic human or civil rights. Then – and only then – does the Court strike down the law – and it is obliged to predicate its decision with legal precepts, to show what prejudicial harm the law causes.

Kohelet makes out as if the Court acts upon a whim, and with political bias; that it acts irresponsibility. That’s demagoguery.  What if the government acts irresponsibly? Who will stop it, if not the Courts? Would you like to live in a country where we can be deprived of our rights for political expedience? The Courts have NOT ruled parts of the “constitution” unconstitutional! What it has done is that in response to attempts by the government to pass laws as “basic laws” that would override existing basic laws rendering them irrelevant, it has ruled that you cannot pass laws that would override existing laws. Kohelet refrains from mentioning that.

Prof. Moshe Koppel, founder of the Kohelet Policy Forum. (Courtesy of the times of Israel).

8. In another example of mendacious audacity they say that “The Court decided with no basis in law, that any ruling of the Attorney General is binding on the government. That means that the appointed civil servant is now the boss of the Prime Minister”. Ridiculous! The position of the Attorney general is outlined in Clause 17(b), Basic Law: the Knesset (1994). Furthermore, the Court did not decide that the AG’s ruling is binding, the Knesset did! https://fs.knesset.gov.il/globaldocs/MMM/84bc8d55-f7f7-e411-80c8-00155d010977/2_84bc8d55-f7f7-e411-80c8-00155d010977_11_10955.pdf

The AG’s job is to provide the government with legal advice as to whether its laws or policies are in accordance with the law, or not. His or her opinion is not binding; but the AG can say that he or she cannot in good conscience defend the government’s decision in Court. To conclude that “an appointed civil servant is now boss of the Prime Minister”, is mendacious demagoguery.

9. “For example: the court suspended signed government contracts for offshore natural gas drilling, undermining its ability to do business”. This is a half-truth, with context withheld with the express intention of misleading the public.

The following is a description of the circumstances: “Israel’s Supreme Court struck down the government’s natural gas plan finding the stability clause unconstitutional. In a 4-1 judgment, the court found that the clause which unduly restricted future governments’ freedom to regulate the gas market and that hence it is undemocratic. The stability clause was supposed to restrict the government and the Knesset (the Parliament) from changing the plan for a period of ten years and protect the lease holders from regulatory changes in taxation, antitrust limitations and export quotas”. (Ari Reich article in “Linkedin”, April 4, 2016). Objectively speaking, would you consider a government making a deal that restricts future governments for the next 10 years from changing antitrust and tax regulations, democratic? Or that the excessive concessions given Noble Energy and Delek, that are contrary to tax regulations, and violate antitrust laws fair and reasonable?

10. “The Court overruled hard-won compromises regarding Haredi army enlistment, that sent Israel into an endless series of elections”. Misrepresentation. It was because Avigdor Lieberman refused to join the coalition because of the said “compromise” that Netanyahu had reached with the Haredi parties, an act of political bribery to persuade them to join the government that forced Netanyahu to call another election, but it was never the issue over which the series of elections were fought. It had much more to do with the appropriateness of a corrupt Prime Minister under indictment who refused to resign (even though in 2008 he demanded that Olmert resign) and his obsession to remain in power in order to use his status to undermine the legal proceedings against him. Had he resigned, a government would have been formed within two weeks!

11. And then at the end, they assert that “The reforms in progress will address the anomalies of the Israeli system, and bring Israel just a few steps closer to the rest of the Western democracies”.

Perhaps the most mendacious thing about this “infomercial”, is the cloak of “civic concern” for the Israeli legal and judicial system. However, a coalition that had no moral qualms tampering with and corrupting the country’s Criminal Law and its Penal Code regarding the restriction of moral turpitude so that ONE MAN could be made a cabinet minister, DOES NOT HAVE THE MORAL RIGHT to claim the moral ground of “reforming” our judicial system, “addressing the anomalies”, and having the best interests of our judicial system at heart.

Especially, when we all know – Kohelet included – that the government is motivated by narrow self-interest and ulterior motives to subjugate the Court to the authority of the Knesset, which they control;

Smotrich, Ben Gvir and others, want to be able to appoint judges and override the court, so that the Court cannot order the dismantlement of illegal settlements in the West Bank. And without the reasonableness standards, they won’t be hampered by appeals and injunctions.
Yariv Levin, Regev, Maoz, Smotrich and ben Gvir want to override the Court so that they can incarcerate asylum seekers in detention camps like we were held in Cyprus and North Africa, and to deport them back to their countries, to their deaths, in contravention of International Law, “to preserve our Jewish character”.

Netanyahu wants to control the Courts in order to vacate the charges against him and cancel his trial.

The Haredi parties want to control the Courts so that they can finally cement exemption from army service for their Yeshiva students and pass laws mandating gender separation in the public sphere and at public functions.

Deri wants to control the Courts so that he can go back to being a cabinet minister.

Each of them has a vested interest in pushing for this judicial upheaval.

And that makes Kohelet’s “infomercial” a prime piece of cynical sophistry.