Picture Credit: Picture Credit: Blue and White leader Benny Gantz, Supreme Court Chief Justice Esther Hayut, and PM Benjamin Netanyahu at a memorial service for former President Shimon Peres in Jerusalem, Sept. 19, 2019 (AP/Ariel Schalit)
By Caroline B. Glick | Israel HaYom
December 25, 2020
The left remains the only power that competes with the Likud for power. And if Likud and its coalition partners do not win 61 seats in the upcoming elections, the left will continue to control the national agenda regardless of what the public thinks.
Over the past several weeks, Israel’s political commentators have repeatedly declared the demise of the political left. On the face of things, they are right. The polls all show that the right-religious bloc will win a comfortable majority in the Knesset elections scheduled for next March. There is no way that the left-Arab bloc will win a sufficient number of seats to form a government.
The commentators insist that given the polls, today the name of the game is the contest between the right-wing leaders. Will Prime Minister Benjamin Netanyahu and his Likud party win enough seats to maintain their dominant position? Will his opponents Gideon Sa’ar and Naftali Bennett win sufficient seats to unseat him?
With all due respect to the polls and the commentators that interpret them, the left is far from dead. True, its parties aren’t popular enough to form a government. But that has been the case since the mid-1990s. The left long ago accepted that it has lost the public. Rather than reconsider its positions, the left developed a strategy that compensates for its lack of public appeal. That strategy enables the left both to seize and wield power without public support and prevent the right from wielding the power it wins at the ballot box.
The left’s post-democratic strategy has two main components. The first is the so-called deep state. The deep state in Israel is an amalgam of senior government officials, the legal fraternity including the state prosecution, the attorney general’s office and the Supreme Court, and the media. Members of these groups are overwhelmingly associated with the left. They use their powers to advance the ideological and political goals of their camp while stymying the right’s efforts to implement its own policy and ideological agenda.
This week we were witness to two spectacles of the deep state in action.
Tuesday, the justices of the Supreme Court conducted a hearing on a number of petitions asking the justices to abrogate the 2018 Basic Law: Israel as the Nation State of the Jewish People. Despite the law’s name, the hearing wasn’t geared primarily to undermining Israel’s Jewish national identity. Israel was the Jewish state before the law, and doesn’t need the law to remain the Jewish state.
The purpose of the hearing had little to do with the law itself. Instead, as far as the justices were concerned its purpose was to stake out the claim that the Court has the right to overturn Basic Laws. To understand how radical this move is, it is important to understand the legal basis of the court’s current powers.
Israel has no constitution. At the outset of Israel’s so-called “judicial revolution” in the 1990s, the justices invented a distinction between Israel’s Basic Laws, which deal with general principles of the state, and its other laws. On their own volition and with no legal foundation, the justices called the Basic Laws a constitution. Having made this determination, the justices proceeded to arrogate to themselves the power to abrogate the non-Basic Laws, claiming the Basic Laws as the source for their extra-legal seizure of power. A significant portion of the Court’s more radical political judgments have been anchored in their radical interpretation of the Basic Law: Human Dignity and Liberty. Among other things, they have used the law as a means to erode the significance of Israel’s Jewish character.
The Knesset passed the Nation State law as a Basic Law in a bid to curb the justices’ power to exploit their radical interpretations of the Human Dignity and Liberty law. Since the Court said the source of its power is the Basic Laws, it is self-evidently barred from abrogating the source of its authority. But on Tuesday, the justices set out to do just that and so seize the Knesset’s power to legislate, as the sovereign repository of the people’s will, the quasi-constitutional foundations of the state.
To legitimize her legally groundless action, during the hearing Chief Justice Esther Hayut announced the existence of a heretofore non-existent third type of law – the law that lets Supreme Court Justices abrogate Basic Laws. She referred to her new type of law as “the doctrine of amending laws that are unconstitutional.”
Both Netanyahu and Knesset Speaker Yariv Levin stated flat out that the justices have no legal authority to discuss the constitutionality of Basic Laws. But Hayut and her comrades, and their supporters in the media, the Attorney General’s office and the left’s political parties couldn’t have cared less. They are staking a claim and there is nothing the government can do about it.