Judicial reform makes Israel more like Hungary than the US - legal expert

Prime Minister Benjamin Netanyahu has said he will not give up on the “services” of Shas leader Arye Deri, whom he was forced to dismiss from the cabinet after the High Court of Justice disqualified him from serving as a minister. Deri had been appointed interior and health minister, but his appointment was deemed “extremely unreasonable” and subsequently struck down by the High Court in light of his 2022 plea-bargain conviction for tax fraud. 

“I do not intend, like anybody here, to give up on his services. We will fix it,” Netanyahu told a cabinet meeting on January 22, adding that keeping Deri as at least an observer in the cabinet is in Israel’s national interest. Netanyahu, who is still facing a corruption trial himself, also vowed to push ahead with the judicial overhaul spearheaded by Justice Minister Yariv Levin. 

To get an expert opinion on the issue, I spoke to Prof. Mordechai Kremnitzer, a Senior Fellow at the Israel Democracy Institute and a professor emeritus at the Hebrew University of Jerusalem. Kremnitzer is opposed to Levin’s plan, warning that it would deal a fatal blow to the Supreme Court, the balance of power, and Israel’s robust democracy. “Israel will have more in common with Hungary than with the United States,” he says. “And the story about shared values between Israel and the US will be only in the imagination and not in reality.” 

Is allowing Arye Deri to participate in cabinet and security cabinet meetings as an observer legal and within the spirit of the High Court decision preventing him from serving as a minister?

That’s difficult to say because it’s not clear, at least to me, what exactly is meant by being an observer. If the intention is to call it an observer but actually to allow Deri to have the same status as other members of the cabinet, this would be something that contravenes the decision of the court.

But he obviously won’t be allowed to vote.

Yes, but the question is to what extent in this forum votes are the usual practice and procedure. My impression is that the majority of decisions do not go to a vote; so if the only difference would be in the small number of cases where a vote is taken, this would mean he is effectively a member. It smells like a spin or a trick.

Could there be another petition to the High Court against such a move?

I don’t know because, as I said, it’s not clear exactly what role Deri will play in the cabinet.

We’ve heard a lot about Justice Minister Levin’s plans to reform the judiciary. What do you think lies behind these moves? There is an argument that what lies behind this is Netanyahu’s corruption trial and this is only the first stage, after which there will be attempts to replace the attorney-general or split the role of the attorney-general in two and bring in someone who may cancel the breach of trust allegations or possibly cancel the whole trial. Is this possible?

Yes, I think theoretically it’s possible, but I don’t think this is the only reason behind this revolution that is taking place. I don’t call it ‘reform’ because it doesn’t aim to reform things – it aims to destroy. I think partially it is explained by Bibi’s trial but only partially. I think there is something deeper here. If one wants to understand it, one has to go back 10 or 15 years to the first legislative initiative against the court by Knesset members such as Yariv Levin and others. The concerns of these people were that the court may not allow them to do whatever they want in the occupied territories. They see the court as an obstacle in possible plans to take over private Palestinian property. Although the court gave the government a very long rope in this matter, this is a rope with limitations. And I think they are concerned about these limitations. They want to do away with these limitations. And then there are the concerns of the ultra-Orthodox over the military service of yeshiva students and also plans by the religious sector to push Israel in the direction of a state that behaves according to Halacha [Jewish law] against equality. The chauvinistic elements in the coalition want to impose Jewish superiority vis-à-vis the Israeli Arabs. Since one of the fundamental roles of the court is to protect equality, the court is an obstacle; therefore, the court has to be taken out of the game in the sense that it will continue to exist, but it will never say no to the government. 

We know the prime minister is legally prevented from involving himself in what you call this judicial revolution. If he is found to be involved in or connected to the plans, would this be grounds for the attorney-general to declare him unfit for office?

The Supreme Court in its decision to allow Netanyahu to serve as prime minister insisted on him signing an agreement not to act in a conflict of interest. If it can be proven that he acted against this instruction of the court, then he may be declared as someone who cannot carry out his role. But everybody understands that this would be an extremely dramatic decision, and it will not be easy to reach such a conclusion.

When both US Secretary of State Antony Blinken and National Security Adviser Jake Sullivan were here recently, the prime minister talked about shared values between Israel and the US. If this judicial revolution passes, do you believe that Israel and the US will still have shared values?

I think that by destroying the independence of the courts and the attorney-general’s office and by allowing infringements of human rights without effective judicial control, Israel will have more in common with Hungary than with the United States. And the story about shared values between Israel and the US will be only in the imagination and not in reality.

The opposition claims that the planned changes mark the end of Israeli democracy, but all the parties making up the current coalition made it clear during the election campaign that they wanted significant restrictions to be imposed on the judiciary and therefore what’s happening now is merely implementing the will of the people.

First of all, it’s not clear that the Likud went to the elections with a clear agenda to destroy the judiciary. It’s true about other parties, but it’s not true for the Likud. Secondly, this assumes that majority rule means the rule of the people and, of course, this is not true. The majority is not the people, it’s the majority of the people, and democracy means the rule of all people. Democracy without checks and balances, without human rights and the protection of minorities, is not a democracy: it’s a Hungarian-type of what they call democracy. It’s something between what used to be a democracy and a dictatorship. So I think what is being claimed by the coalition does not accurately describe democracy.  ■