Israel’s Supreme Court Must Not Repeat Hungary’s Mistake

Fake democracies take power by controlling who gives orders to public officials. During Hungarian elections, local polling station committees count the votes. Our research found that in 2018, committees that only had government members on them were far more likely to have irregularities in the count than those composed of both government and opposition. Surprising? Not especially. But it’s also the same reason that Israeli Justice Minister Yariv Levin wants to prevent the committee that appoints new judges from meeting. And it’s why the Israeli Supreme Court needs to hold the line to defend democracy.

In democracies, citizens elect people to make laws and also to supervise their execution. The catch is that in a parliamentary democracy, such as Israel’s, the same people take on both roles. When the people elected to make the law ignore that distinction and execute the laws they would like to have rather than the ones that exist, it amounts corruption or malpractice, and the judiciary is supposed to hold wayward officials to account. When the laws those officials would like to have concern the rules by which laws themselves are made—that is, when they are constitutional, or in the Israeli terminology, Basic Laws—conflating both roles threatens the survival of democracy itself.

Unlike in Hungary, Israel’s Supreme Court can test legislation against the country’s fundamental values and strike down incompatible laws.

Governments depend on appointed officials: civil servants, police, and soldiers to put laws into practice. These people depend for their livelihoods on a government paycheck and for promotion on a bureaucratic hierarchy. In a real democracy, their tasks are governed by the law, and they are protected from dismissal and reprisals if they follow it. In a fake democracy, the executive leadership takes control. That way, corrupt officials can intimidate opposition-aligned or simply foreign businesses (as happens in Hungary), or police officers taking orders from anti-democratic ministers can use excessive force against demonstrators (as they recently did in Israel).

Officials who don’t want to support the government line can resign, as Air Force reservists, soldiers, and even nuclear scientists have threatened to do in Israel. But resignations can never be enough because an honest official’s resignation gives the corrupt government a chance to appoint an obedient replacement. Officials who want to uphold democracy need to be able to do it when it matters—while they are still in their jobs.

The current crisis in Israel will come to a head in September, when the Supreme Court hears challenges to Prime Minister Benjamin Netanyahu’s most recent judicial coup law. The law was written to change the way the Supreme Court interprets government actions by preventing it from blocking them by applying a test known as “reasonableness.”

Although Netanyahu—a man with a tenuous relationship to the truth—denies it, the new law would apply to decisions to fire the attorney general (Israel’s chief public prosecutor and an independent office, unlike in the United States) or not to convene the judicial appointments panel, where the government doesn’t have enough allies to exert control, or to dismiss the police chief on the grounds that he was insufficiently repressive.

The Supreme Court needs to be able to instruct officials not to obey illegal government orders, and to order security forces to protect officials from reprisals, which means the court needs to invalidate the law. (Such conflict is not unheard of in constitutional states: It nearly occurred in the United States under the administration of former President George W. Bush)

In Hungary, the courts cannot review constitutional amendments, and European Court of Human Rights judgements, which are theoretically binding on Hungary, are often not implemented. The Hungarian judiciary did not ask the European Court of Justice to review Orban’s constitutional changes, even though the EU now thinks they have damaged judicial independence so much that it has demanded that Hungary undo them in order to be trusted with EU funds. Because of the timidity of the Hungarian judicial system, the EU had to wait several years, until the Polish government attempted a similar judicial coup, before it could develop the jurisprudence needed to stop takeovers of the judiciary.

Israel’s courts must not be so timid. Although it has never struck down a Basic Law, the Supreme Court has prepared the ground by developing jurisprudence that could be used to do so. It could question whether this reform really is a Basic Law or if it was just called one without justification. Alternatively, it could argue that the law breached the core values of the Israeli legal system by destroying the separation of powers. (Either something is so fundamental that it undermines the system; or it is only notionally, but not actually, fundamental. It can’t be both). In a tactic borrowed from major British constitutional cases, Israel’s court has now said it will meet as a full bench of 15 justices when it hears challenges to Netanyahu’s law.

The Supreme Court must command officials to disobey any attempts that Netanyahu or Levin might make to instruct them to ignore the court.

Netanyahu has said that he would ignore the Supreme Court if it blocks the law. The court must not be deterred by his bluster. Indeed, this is the most serious constitutional crisis in Israel since June 1948, when the Irgun, a militia affiliated to those parts of the Zionist movement that would evolve into the Likud party, sought to import weapons on a ship called the Altalena for its own use in the War of Independence rather than channeling all military equipment to the recently established Israel Defense Forces.

After a tense standoff, then-Prime Minister David Ben-Gurion ordered the ship sunk. Future Prime Minister Menachem Begin, then the head of the Irgun who was aboard the ship as it was shelled, ordered his men not to fight back in order to prevent civil war from breaking out in the nascent Israeli state. Sixteen Irgun members and three Israel Defense Forces soldiers died.

Today, Israel faces another constitutional crisis. Justice Minister Yariv Levin is at the helm of an effort that threatens to splinter Israeli society just as the ship commanded by his great uncle Eliahu Lankin did in 1948.

The Supreme Court must command officials to disobey any attempts that Netanyahu or Levin might make to instruct them to ignore the court. Yoav Gallant, Israel’s defense minister and a Likud member, has made clear he would take inspiration from Begin’s statesmanship and “act according to law” if the Supreme Court strikes down Netanyahu’s legislation.

The power is in the court’s hands: When it hears the case, it will be the last constitutional bulwark of democracy in Israel. It is the court that must decide whether to hand over power to Netanyahu or order him to cease his attacks on Israeli democracy.

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