Jeff Klein

Where are we headed to?

To form an educated opinion about the planned judicial reform in Israel, it is helpful to understand the political and economic mechanisms behind, the comparison how similar challenges were handled in other countries and who might benefit from such a change and why.

First of all, the Israeli right has been in power almost continuously since 1977 (38 years vs 8 years for the left). All that time they did not make a change to the system but just now it had become so urgent that legislation can’t even be halted for a week. This raises the valid question whether it might be related with the PM’s legal issues.

One should think that an elected government should be committed and serve its people.
Deri served as a senior minister in Israel after being convicted for bribery during his term as an interior minister and serving time in jail and returning to his previous position as an interior minister and being involved in some shady tricks (i.e. a giant house under his daughter’s name, his brother also has quite an impressive bit of estate, which is surprising for someone who studies scriptures the whole day) and being convicted for tax fraud and lying to court to get a plea bargain.

How can such a person be fit to serve as a finance minister? You can’t serve as a fireman in Israel with a criminal record but evidently you can be at the most senior positions in government. How is the Supreme Court not supposed to intervene?

Since Deri was sacked from his ministries, there’s no minister of finance and no minister of health. The question why is more than legit. Might it be because it is more important to retain the power at all costs rather than letting someone actually work for the people?

Now we see elected ministers dedicating their time to ban fresh pita bread from jails and to drive to attack’s locations and make little speeches for the media rather than tackling the issues that they were elected for. There are government members calling daily to jail opposition MKs, journalists, retired judges etc. Isn’t that the sign that fundamental liberties are going to a dangerous place?

In no other real democracy are there so little checks and balances as in Israel. There is no constitution, no rules for a constituent assembly or constraining condition to pass a law that has to do with fundamental liberties, no constitutionality control, no second chamber at parliament etc. Some democracies have one of these occurrences but not all of them at the same time.

Democracy relies on the separation of the three powers. As of now in Israel there is no separation between the legislative and the executive, they are the same since the government has a majority at the parliament. The judicative of the Supreme Court is the only counter power, which is about to be weakened more resulting in a de facto end of democracy as all power will remain centralized.

If the process for the reform is so democratic as claimed, how come don’t they make sure to safeguard the democratic rights by providing the Supreme Court with guarantees as to elections for instance? By making some laws inalienable. Because if the judicial overhaul is completed, they could very easily legislate that only Likud members can be candidate to an election.

It is very hard to justify that a majority of 61 could amend (or better to say violate) the declaration of independence. Shouldn’t there be a larger consensus for that, rather than to take the risk to have a regime change after every election? There would be other, more democratic means like a referendum on that matter to make sure that the population stands behind the overhaul.

Now that the Supreme Court tackles corruption so thoroughly, how can citizens be in favour of destroying it? It is the only authority that ensures that the hard-working class won’t work their arses off at work to pay for politicians to divert billions. And yes, politicians have an ugly tendency to do that because they’re rational.

There’s a rationality principle called non-satiety that relies on the assumption that saturation of desirable good doesn’t exist. One prefers to earn a million per month than $10k per month. Logical. If you remove the barriers, why wouldn’t they simply do it at the population’s expense?

At the moment, to international instances, Israel is considered a democracy AND a law-abiding state whose system functions under the rule of law. Which means that Israeli judgements are recognised valid and that criminal cases cannot be prosecuted a second time elsewhere. Because it is believed that for any event (i.e., a Palestinian family killed by a missile as collateral damage), the courts will investigate and enforce the law.

By overhauling the Supreme Court, this recognition would be jeopardised. Meaning an open door for the ICC to create a new body to prosecute Israel. Any soldier who lands abroad could be detained by the authorities and brought to Den Haag for judgement.

The single fact that no Israeli PM or general has ever been prosecuted/sanctioned for war crimes (which is a miracle) should be enough of a reason to keep things unchanged.

The current government is heading towards a reinforcement of divisive measures along ethnicity lines in the West Bank. Without the Supreme Court to dismiss some steps, they might cross the line of what’s acceptable to the international community in terms of what is usually called “apartheit”. Which potentially means joint economic sanctions, global boycott, etc.

A glance on how international sanctions made South Africa collapse 30 years ago and how their economy has been struggling ever since should ring all the alarm bells not to go there.

The Supreme Court is far from interventionist or leftist as some claim to justify modifications. It has overhauled the government only 20 times in 75 years what is quite low compared to other democracies. And many of its decisions were quite bold. They recently ruled the obligation for a city to build a mikveh, or for expelling Palestinians from Sheikh Jarrah, or for the evacuation of Khan alAkhmar, not even to mention previous rulings such as for the legal inequalities in the areas B and C.

Then we have PM Netanyahu’s trial. He isn’t just persecuted. They’ve been investigating his case since 2015. It took them 2 years of investigations to declare him “suspected”, 2 more years to declare him “accused” and still he’s benefitting of innocence presumption despite some extra careful steps meant to safeguard him from an overzealous judicial machine. There is a very high probability that he’s done something wrong. Why change the rules in the middle of the game?

Now he wants to appoint the judges that are supposed to rule in his trial.

Why does the judicial reform aim to replace judges at the Supreme Court – basically the most senior and experienced judges in the country – at least partly by people who have no formal education in law? It’s not far-fetched to assume that a court supposed to judge litigations based on a legal framework. The argument that “professionals from other fields are not less knowledgeable and competent” seems rather unprofessional and needs to be proven first.

The PM already chooses the army’s chief of staff, appoints the Mossad head, the Shabak head, the budget of these organisations (that are fully – for the Mossad – and partly – for Shabak – exempted from respecting the law). He also heads the government AND the parliament. So basically, he isn’t accountable to anyone for anything, except respecting a few principles and laws in a country that has no constitution.

But now, even the legal frame seems to be too rigid for him. How much power can you concentrate in one person’s hands and expect that they will act in the right way?

There’s an attorney general that is named by the government. Now they want to split the attorney general’s role into 2 different positions (government’s attorney and prosecutor general). What are they so afraid of? Why are they trying to prevent the attorney general from prosecuting the government?

By splitting, they will turn the attorney general into an advisor who has no power to prosecute. So in case the attorney general notices some irregularities, he/she will have to testify against the government and to lose their job. And it is easy to guess what the next step could be: passing a law that binds the attorney general to confidentiality, which would simply make prosecuting the government impossible.

What should make you think is that 90% of the people who’ve given their soul for the country AND who have a global vision of all the apparatus and all the stakes involved come out against the reform. Doesn’t it make one think twice to have all former Mossad heads, Shabak heads, Nobel prize laureates, CEOs etc. (most of whom had excellent relations with Bibi and some of whom were appointed directly by him) warn against a judicial overhaul? We’re speaking about the most capable, competent, and analytical people in the state.

Lastly and maybe the strongest argument of all: the principle of finance. It is to be detached from politics and preferences and aims to maximise the profits and money that one can make. When financial rating institutions warn that Israel’s credit score will be harmed, it is not because they’re “leftist traitors”. They literally don’t care about Bibi or not Bibi, they just want to make money.

So, what would a lower credit score imply? It means that investors will be more wary of investing in Israel. And how’s it related to the judicial overhaul? A strong Supreme Court provides guarantees of legal stability. If the government has a full power and no legal frame it is bound to, things can change overnight.

What incentive would a company still have to come to Israel and have the risks of seeing its taxes double all of a sudden? Why would investors put their money in a place whose court decisions have no value, meaning that their assets could be seized? Why would investors invest assets in a country that doesn’t fight corruption? The effects on Israel’s economy into that direction are already observable since they started talking about the judicial overhaul.

Because what is a ₪200 bill worth? It is just a piece of paper that costs ₪0.005 to produce. The reason why you can have a mid-range dinner for two with that note is because people trust the system. And trust in the system is based on a belief that the future will be equally as good or better than the present.

Since 70% of the population (according to polls) fear the overhaul, they might anticipate that the national economy will be harmed for all the reasons aforementioned. And they might be more tempted to invest abroad. Or to detain some foreign currency to at least hedge against the risks. Which means selling Shekels to buy USD for instance. And if it starts to happen, the value of ₪ will drop. Which means that the average Israeli won’t be happy that his all-inclusive weekend on Cyprus costs him much more than last year whereas he would have paid the same if he kept his savings in USD. Which will create more and more incentives to do transactions in USD. For instance, an owner of a furniture shop (could be any other shop-owner but for the sake of the argument let’s take a furniture shop) he advertises a slightly better price in USD than in Shekel, because he’s not a “frayer”. And it’s good for the shop since he imports his sofas from abroad, he doesn’t need to worry about whether the Shekel – USD rate will drop and whether he will have to adjust the prices etc.

Now imagine all the shop owners in Israel doing the same and imagine how everyone prefers to have some savings in USD. The value of the Shekel will drop and importing goods will get much more expensive. And then, who knows what will happen when a huge majority of the population pays a credit or mortgage in Shekels.

Speaking of which, if there’s no Supreme Court to guarantee Israel National Bank’s independence, what prevents the government from meddling in National Bank policies? The government knows best, right? Great potential for a catastrophe. And one more reason why investors would be wary of having assets in Israel.

It can’t be stressed enough, if the reform will be implemented as intended Israel as we know will cease to exist.

For now, the beneficiaries and their supporter’s base will be content and get what they wished for but we also have to keep in mind that rulers will change over time and so do their agendas. What will protect us and our children from being persecuted from a future ruler’s will, which might be directed against us?

How can people who have spent 2000 years as a discriminated minority at the mercy of the majority actually support a step that would harm fundamental liberties of minorities? As we claim for ourselves to be a light to the nations we should also lead by example.

About the Author
The author is trying to use his experience and knowledge as fact based as possible in a sharp, and sometimes blunt way to give the reader a better overview and understanding of an issue.
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