Israel’s High Court of Lawlessness

An anti-incumbent government protester waves an Israeli flag tainted in black in front of banner showing Israeli Prime Minister Benjamin Netanyahu, during a demonstration in front of the Knesset celebrating the resignation of the Knesset Speaker in Jerusalem on March 25, 2020.
EMMANUEL DUNAND/AFP VIA GETTY IMAGES

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Today, those denouncing the other side for destroying democracy are often busy doing that very thing.

We are currently witnessing this phenomena in Israel. After three elections without a new government, the current opposition and their megaphones in the media are denouncing Prime Minister Benjamin Netanyahu’s attempts to retain power as an affront to democracy.

For Israel’s radical leftist media, it is completely unacceptable that Netanyahu would continue in politics while under indictment by the attorney general. Never mind that in the March 2 vote, his political party won more seats than ever before. Never mind that his coalition garnered almost 50 percent of the Israeli vote, more than any other bloc.

Obviously, there is a clear disconnect between Israel’s mass media and the voting population.

The fact that half of Israelis would vote for Netanyahu while under indictment could indicate two things: The people don’t care whether he committed the crimes, or the people don’t believe he committed the crimes.

Perhaps there is a third reason.

“Millions of Israelis are willing to vote for a possible criminal because they see it as the only chance of curbing the legal establishment’s takeover of Israel’s democracy,” wrote long-time Israeli legal commentator Evelyn Gordon earlier this year.

She continued: “The most common argument I heard was simply this: ‘Ousting Netanyahu would mean letting them win.’ In other words, Netanyahu the man no longer matters; he has simply become a symbol of the much larger struggle to regain the fundamental democratic rights that the legal establishment—the courts, the attorney general and the prosecution—has steadily usurped over the past three decades.”

From afar, the yearlong battle for prime minister between Benjamin Netanyahu and Benny Gantz may look like a typical fight between political adversaries.

For Israelis, however, the battle playing out is a fight for Israel’s future—and it far predates the current election cycle.

The Present Crisis

As I write, Gantz and Netanyahu are trying to negotiate a unity government to make up a majority in the Knesset with some type of rotating prime minister role. However, two main sticking points are preventing them from coming together.

The first is whether Gantz will agree to not impede Netanyahu acting on United States President Donald Trump’s peace deal for Israel. This will see sovereignty be extended over large portions of Judea and Samaria almost immediately after a government is formed. Gantz wants to hold off on a sovereignty declaration until other world powers agree. It seems, however, that Gantz is willing to concede this point.

The second point of contention relates to appointments of the justice minister and the oversight committees that together can impact the future makeup of Israel’s notoriously intrusive Supreme Court. Esteemed American constitutionalist Judge Robert Bork once called it the “most activist court I have ever seen.”

Netanyahu hopes that holding these positions will allow him to bring four new justices into the court during his next term. For Netanyahu voters and others in his right-wing coalition, to achieve sovereignty over parts of the West Bank without first checking the power of the Supreme Court is pointless as the court would strike down any government action on sovereignty.

If that seems to you like a potential overreach of power by the Supreme Court, you’d be right. But this is exactly the type of action the court routinely takes and why Netanyahu is still negotiating with Gantz.

Such activism was on display two weeks ago when the Supreme Court dictated to Speaker of the Knesset Yuli Edelstien to hold a vote for his removal from office given that the new majority of the Knesset wanted him gone.

In his resignation letter, Edelstein wrote, “The High Court decision is incompatible with Knesset rules and demolishes the work of parliament. The High Court’s decision is a gross and arrogant intervention of the judiciary in the work of an elected legislature. … As the leader of this house, I will not allow for Israel to move towards anarchy. I will not lend a hand to civil war. For the State of Israel and in order to renew the spirit of statehood in Israel, I hereby resign from my post as Knesset speaker.”

Not wanting to go ahead with a vote that would break with Knesset precedent, and not wanting to also defy the court, Edelstein resigned. Following his resignation, typically the speaker would continue for another two days until another speaker could be elected by the Knesset.

But that time table wasn’t good enough for the Supreme Court. Intruding again into Knesset affairs, and breaking Israeli Basic Law, the court immediately ordered Member of the Knesset Amir Peretz to the role of temporary speaker, and told him to hold a vote to select the permanent speaker.

“Anyone who cares about democracy should be appalled by this,” wrote Evelyn Gordon at the time. “And the fact that leftists overwhelmingly supported it shows that their professed concern for ‘democracy’ is mere camouflage; what they want is a judicial dictatorship.”

But why was the judiciary so pushy to have a new speaker of the Knesset?

Ostensibly, it was so the new speaker could hold a vote that would start the ball rolling on the creation of a new law banning an indicted member of the Knesset from becoming prime minister.

Why such haste on creating that law? Because Prime Minister Netanyahu is currently under indictment by the same legal fraternity that was pushing for the vote!

This was an attempted coup deployed by Israel’s highest court to take down a democratically elected prime minister candidate.

But the coup didn’t last long. In a stunning turnaround, Benny Gantz decided to nominate himself for the speaker role, break up his Blue and White coalition, and agree to attempt to form a unity government with Netanyahu, his sworn enemy.

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Gantz claimed he backed down to prevent a further crisis during the coronavirus panic. Others have said that he realized he wouldn’t have the support within the Knesset to pass the law to prevent Netanyahu from prime minister anyway. Perhaps Gantz recognized that he himself was simply a cog in the larger machinations of Israel’s “deep state” to take down the prime minister.

Regardless of Gantz’s reasons for backing down, the Israeli media quickly moved on from covering the court’s lawless behavior and the true reasons for Edelstein’s stand. As Israel Hayom put it, “In fact, it’s hard to remember such a crisis where the gap between what was reported in the media and what actually happened has been so big.”

Nevertheless, what happened is obvious to those willing to see. Israel’s Supreme Court colluded with the left to bring down the prime minister. When it failed, the media provided cover, flooding the papers with even more coronavirus content, as well as how Gantz was never really strong enough to take down Netanyahu.

Could it be that Israel’s Supreme Court is intervening on such a grand scale to override due process?

Could it be that Israel’s media is in complete agreement with the court as well as other progressive politicians to take down Benjamin Netanyahu?

Could there really be an Israeli deep state at work obliterating Israel’s democracy?

And if so, is Netanyahu’s demise the deep state’s only goal? What is the source of motivation for these people?

These are questions that I’ll be exploring over the next few weeks in a series of episodes for the Watch Jerusalem podcast. (So far, I’ve covered the “Lawless Rule of Israel’s High Court” and “The Almost-Stolen 2015 Election.”) Articles covering those topics won’t be far behind.

As I mentioned on Sunday’s show, the spirit of the current attacks against Netanyahu actually originated long before he became prime minister. In the case of the Supreme Court, the roots of its transition toward activism and lawlessness date back to the late 1980s, and it was permanently corrupted under the tenure of Aharon Barak, the former president of the court in the early ’90s.

The attack by Israel’s legal establishment against Prime Minister Netanyahu is a direct result of Barak’s rule over the high court. Robert Bork said that Aharon Barak was “maybe the worst judge on the planet.”

I mention Bork’s opinion because Barak was rising to power within Israel’s Supreme Court at the same time that Bork was outrageously refused by the Senate to be confirmed to the U.S. Supreme Court.

Watch Jerusalem editor in chief Gerald Flurry drew attention to the failure to confirm Bork in the late ’80s as a watershed moment in American jurisprudence. “The tide turned in a big way in 1987,” Mr. Flurry wrote in 2013. “Law started to get a lot weaker. And lawlessness started to get much, much stronger.”

As I’m finding out, this same phenomenon of lawlessness that started to take place in the United States happened at the same time in the Jewish State of Israel with the rise of Aharon Barak.

Is this a coincidence?

Certainly not!

To find out the reason for the simultaneous attack on law in these distant nations, I encourage you to read Mr. Flurry’s article “The Hidden Cause of Society’s Demise.” You can also look out for future Watch Jerusalem podcasts on more dimensions of the ongoing attacks against Israel.

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