Israel is the only democracy in the Middle East, but it is a little too much for the taste of the religious right. This is why the coalition government is advancing a reform that will profoundly change the balance of power in the state.
“If there is only one branch of government instead of three, then we will still have the name of democracy, but will we have real democracy, in the proper sense of the word, with respect for the idea of what a democracy really is? »
This radical question is posed by one of the most respected jurists in Israel.1. Elyakim Rubinstein served as Attorney General and Supreme Court Justice in his country. And like others, he protests against the reform of the current coalition government which wants to weaken the Supreme Court and neutralize the only real counter-power.
I had met this jurist with a remarkable career, a supporter of moderation, during his visit to Montreal in 2015.
“The Holocaust taught us two great lessons: the need for a Jewish state where the doors would never be closed to us, and the need to protect human rights, because the Nazis did not recognize us as human beings,” he told me.
Indeed, one can cite several examples of interventions by the Israeli Supreme Court to block aggressive political projects. It is not for nothing that the religious right and the extreme nationalist right have taken a dislike to it.
This is precisely what motivates the current reform.
To stay in power (and escape trial for corruption), Benyamin Netanyahu has built a coalition including small extremist parties. THE deal came with a price: agreeing to neutralize the Supreme Court.
PHOTO MAYA ALLERUZZO, ASSOCIATED PRESS
Binyamin Netanyahu, Prime Minister of Israel
This means limiting the number of subjects on which it can break a law or an article of law. Repoliticize the judicial appointment process. Currently, judges in Israel are chosen by a committee completely independent of the government. There is also the inclusion of a “notwithstanding” provision, as we know it in Canada (which is cited as an example by the Israeli government, which ignores that the federal government has never used it ). Under this provision, in the rare cases where the Court would still have a power of annulment, Parliament could overrule its decisions by a simple majority.
In the unique and violent context of the country, the whole balance of power will be redrawn. It is not for nothing that demonstrators take to the streets these days.
A democracy without real checks and balances is a “democratic dictatorship”, says Rubinstein. He notes that since 1992 (the year of the adoption of a bill of rights in Israel), of the 470 petitions to prevent government action or have a law overturned, the Supreme Court has granted only 22. far from any government of judges…
Except that these 22 cases were on very sensitive subjects: establishment of colonies in occupied territory, rights of people accused of terrorism, etc.
Rubinstein is far from alone. All of Israel’s former attorneys general for the past 20 years have spoken out against the project. Many former judges too.
The most famous is former Chief Justice Aharon Barak, who has legendary status in the legal world. Its decisions on terrorism are quoted throughout the democratic world.
Aharon Barak speaks in even more catastrophic terms of this reform. If this “undemocratic” proposal passes, Israeli Supreme Court justices should resign en masse, he said in an Israeli TV interview.
Barak, who has held a demanding line on the rule of law, has always repeated that contrary to the Roman adage, the laws must not be silent while the guns speak. This passage is often quoted: “In a democratic regime, the end does not justify all the means, nor is it possible to resort to all the methods used by the enemy. Sometimes a democracy has to fight with one hand tied behind its back, but it is nonetheless in a position of strength. »
As you can imagine, Barak is far from being an idol for everyone in his own country.
He is precisely the one who presided over the assertion of the powers of the Supreme Court. The right accuses him of having carried out a “constitutional revolution”, usurping for the benefit of the Court the powers of Parliament in a country which has no formal Constitution. Others speak of a “juristocracy”.
Even if this reform is adopted, it will obviously not be “the end of Israeli democracy”. You only have to look at the demonstrations in Tel Aviv and the ferocity of the public debate to be convinced of this.
PHOTO GIL COHEN-MAGEN, AGENCE FRANCE-PRESSE ARCHIVES
Demonstrations against the reform bill took place in Tel Aviv.
It would nevertheless be a deplorable weakening of its democratic system, whose originality the country constantly praises in the Middle East.
It is obviously not only a question of “prestige” and moral authority.
This announces a weakening of the rights of Arab and other minorities. Increased and less controlled power for religious extremists. And an even greater threat to peace, which seems nowhere on the agenda…