Opinion by Ehud Barak, Former Labor Prime Minister and Minister of Defense
September 12, 2023 – Haaretz
My Introductory Notes:
Yesterday, September 12, all 15 Members of Israel’s High Court met to begin deliberations on the constitutionality of the Israeli government’s amendment to the “Reasonableness Law” that gives the High Court the authority to challenge “unreasonable” laws passed by the Knesset, Israel’s parliament, that either run contrary to Israel’s Declaration of Independence or to Israel’s Basic Laws thereby creating a unitary government and auguring the end of Israeli democracy.
The Israeli High Court and the Attorney General are the only checks on autocratic rule by the combined Executive and Legislative branches of the Israeli government. There is no Constitution in Israel. In its place are “Basic Laws.” The protest movement that Ehud Barak refers to is now in its 9th month (every Saturday night and many other nights as well throughout Israel that has included cumulatively 7 million Israelis from across political, religious, and ethnic lines).
Barak’s op-ed is poignant, powerful, and true. As a former Labor Prime Minister and Minister of Defense under PM Netanyahu, and the most decorated Israeli soldier in Israel’s history, his perspective is welcome. I print his piece here in its entirety because he states clearly what is at stake as this most extremist nationalist right-wing and ultra-Orthodox government in Israel’s 75-year history is galloping towards canceling the authority of Israel’s Declaration of Independence (DOI) and the right of the judiciary to challenge laws passed by the Knesset that run counter to either the DOI or Basic Laws. I was relieved by the 15-Member High Court’s opening session yesterday in which the majority of the justices expressed their opposition to the amendment passed by this Knesset that neuters the “reasonableness” Basic Law, and I worry about a constitutional crisis that is staring Israel in the face.
What Israel does affects not only the citizens of the State of Israel, but Jews throughout the Diaspora and Israel’s standing as a democracy in the international community. Though only Israelis have the right and duty to make decisions, what Israel does affects Jewish pride, security, and standing around the world. It also affects most especially the American-Israel relationship. President Biden strongly urged PM Netanyahu to stop this so-called “judicial reform” (more like a coup). Bibi has put party and politics over country in order to keep himself out of jail on 3 corruption charges and, thus far, has refused to turn back this raging wave of anti-democratic and autocratic principles.
Here is Ehud Barak’s op-ed in its entirety with a link at the end for those who proscribe to Haaretz.
“Israel’s Supreme Court must consider the larger picture: Netanyahu’s coup on steroids, amid a daily mafia-like campaign of threats. If the Court fails this test, it will be every citizen’s duty to obstruct an illegal government
The next three weeks will be the moment of truth for the Supreme Court; an opportunity that will not come again to stop Israel’s race toward the abyss. It will be the last opportunity to repair the damage that has resulted from its ruling three years ago, according to which a person who has been charged with serious corruption offenses – and is thus prohibited by law from being an ambulance driver, a bank manager, an air force squadron commander, or a cabinet minister – may form the government.
The main challenge facing the court is to recognize that what it’s examining isn’t just the underlying purpose of an appeal, like the restriction of the reasonableness standard. It must consider the larger picture: a coup on steroids, which proceeds daily amid a mafialike campaign of threats. They claim there will be anarchy while causing it themselves, and feed the public baseless lies.
It is untrue that a Basic Law is sacred and immune from review, even if only because the current government is able and willing to attach the word “basic” to any bill that comes to its mind, no matter how bizarre or vile. The Supreme Court, sitting as the High Court of Justice, is our only protection against this.
It is untrue that the Supreme Court has taken authority and powers away from the executive and legislative branches, which are effectively already a single entity. The Supreme Court only determines what should not be done and takes no additional power. The executive branch – that is, Prime Minister Benjamin Netanyahu – demands the unlimited power to do as it pleases. No citizen should agree to this. Nor should the Supreme Court.
It is untrue that everyone will lose if a compromise isn’t reached. First, there can be no compromise between the wolf and the sheep on what to have for dinner. Second, if the dictatorship wins, we will indeed all lose, including the most dedicated Bibi-ists, even if they don’t realize it yet. If democracy wins, however, a sigh of relief will be heard from one end of the world to the other.
Who will lose? Women? LGBTQ people? The Arabs? Members of disadvantaged groups, most of whom vote for Netanyahu? No one will lose but the inner circle of opportunists.
Anyone who says everyone will lose is trying to stoke fear of civil war. There will be no civil war in Israel. Thuggery is possible, especially from the side that has employed it repeatedly over the past 50 years. There could also be, God forbid, isolated instances of loss of human life.
But Netanyahu has no troops, and he has neither the intention nor the ability to start a civil war. His rivals are leading a protest movement that is the most important and sweeping in our history and whose nonviolence has no equal anywhere in the world.
That said, Netanyahu and his supporters do exhibit a mafia-like modus operandi. We all remember the security detail that was assigned to the lead prosecutor in the Netanyahu trial, Liat Ben-Ari, and the claim of former Police Commissioner Roni Alsheikh that senior detectives were being tracked.Within this chilling landscape, the protest movement shines as our beacon of hope and the force that upholds democracy, the values of Israel’s Declaration of Independence, and the rule of law
We also remember the shadowy manner in which Idit Silman and Nir Orbach were recruited to bring down the Naftali Bennett-Yair Lapid government. The threats against the Supreme Court and the attorney general and the declaration that the government is likely not to comply with the court’s ruling follow this pattern. These reckless measures would have been unthinkable just a few years ago.
Let it be said plainly: A government that doesn’t comply with Supreme Court rulings is a government that places itself and its leaders outside of and above the law. It is a rogue government. Its actions are clearly illegitimate and in my humble opinion, also illegal. It bears the stamp of illegality, and I believe every citizen has a duty to make the utmost effort, legally without violence, to restrain it and obstruct its plans.
Within this chilling landscape, the protest movement shines as our beacon of hope and the force that upholds democracy, the values of Israel’s Declaration of Independence, and the rule of law. It gives strength to the attorney general, the gatekeepers of democracy, and the leaders of the opposition. And it will be all we have if the Supreme Court fails this test.
The reserve pilots, combat soldiers, and special forces members who have suspended their volunteer service are the real heroes, the adults in the room. Their efforts are a finger in the dam, and they will save Israel, just as their elder brothers-in-arms saved Israel half a century ago.
If Netanyahu dares fire one of the gatekeepers or devolve powers from the attorney general in order to end his trial, the protest will surge like a roaring tide, till victory. Nonviolent civil disobedience will be the main method of protest. We, each one of the protest organizations, are acting in self-defense.
We are defending the core of democracy, the principles of Israel’s Declaration of Independence, and the rule of law. Surveys show that many Israelis who vote for Netanyahu’s Likud and other right-wing parties share these values. We are defending democracy, the rule of law, and ourselves from a bulldozer that threatens to flatten democracy, the independence of the courts, and, ultimately, us.
We won’t give up, we won’t surrender, and we won’t compromise until this race toward the abyss stops, all the coup laws that have been enacted are repealed, and the coup perpetrators are removed from the helm of the government. This is the only way to guarantee that the nightmare doesn’t repeat itself.
To the protesters: You are our hope. With you, Israel will defeat those who come to destroy it. Shana Tova to you and all of Israel.”
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