Defending separation of powers

With respected former president Reuven Rivlin warning it “might endanger democracy”, Israeli Prime Minister Benjamin Netanyahu needs to be cautious in implementing his new government’s contentious plan for a far-reaching overhaul of the Jewish state’s judicial system. The highly unusual intervention by Mr Rivlin, previously an MP and minister representing Mr Netanyahu’s Likud party, reflects the intense debate taking place over changes that go to the heart of the separation of powers and the independence of courts in Israel’s estimable democracy.

Mr Rivlin’s warning followed a rare public intervention last week by Israel’s top judge, Supreme Court president Esther Hayut. She warned the proposed changes were ‘‘an unbridled attack on the legal system, as if we were an enemy that should be swarmed on and overwhelmed. The new plan is not one to fix the legal system but to crush it’’. Mr Rivlin and Judge Hayut are not alone. More than 80,000 protesters took to the streets of Tel Aviv at the weekend to demonstrate against the new hard-right government’s plans. Central to the concern of those opposed to the proposed reforms is the belief they would weaken the power of the Supreme Court by giving the Israeli Knesset (parliament) unprecedented power to pass laws, by a simple majority, that the court has struck down. The proposals would also give the government greater power over appointing judges and limiting the independence of government legal advisers.

At a time when Mr Netanyahu is on trial over corruption allegations, critics say the changes will cripple Israel’s judicial independence, foster corruption, set back the rights of minority groups and deprive the court system of its hard-earned credibility. Mr Rivlin’s and Judge Hayut’s concerns are understandable. But there should be little surprise about the new government’s early pursuit of judicial reform. It was a central part of the election platforms of all parties that, led by Likud, make up the new governing coalition. As the Jerusalem Post noted, judicial reform is “not a bolt out of the blue. Everyone knew judicial reform would come to Israel if Mr Netanyahu won the election”. Justice Minister Yariv Levin, architect of the proposed changes, has been working on ideas for years. “While it is easy to put the focus of the reform on Mr Netanyahu’s own legal woes, the voices calling for judicial changes predate them,” the newspaper said. For years the parties that are part of Mr Netanyahu’s coalition have been railing against “judicial activism” by the Supreme Court in overturning laws passed by the Knesset. That includes laws on illegal migrants and drafting ultra-Orthodox Israelis into the military.

Mr Netanyahu’s answer when asked about the 80,000-strong demonstration in Tel Aviv and claims he was staging a “judicial coup d’etat” was no surprise: “Two months ago there was a huge demonstration, the mother of all demonstrations,” he said. “Millions of people went into the streets to vote. One of the main topics that they voted on was reforming the judicial system.” Indeed. But it would be unfortunate, in delivering on the promise, if anything is done to undermine Israel’s democracy among the oppressive autocracies of its Middle East neighbours.

Those at the Tel Aviv protest would have done well to contrast their freedom to hold a mass demonstration to denounce Mr Netanyahu’s plans with the fate of Iran’s hijab protesters. The separation of powers is at the heart of the uproar. So is Mr Netanyahu’s ongoing corruption trial and what may happen after a verdict is delivered, and his reliance on far-right ultranationalist, ultra-Orthodox parties that have at times seen their agendas thwarted by the Supreme Court or unfavourable counsel by government legal advisers. That prompted them to make legal reforms top priority in horse-trading to form a new government. Mr Netanyahu must avoid undermining Israel’s democracy. Getting the broadest possible community backing for proposed reform should be his objective.