Prof. Kohn Eliya: Time running out for Israeli juristocracy

The constitutional crisis in Poland and its implications for Israel's legal system are stirring debate among legal experts: Prof. Moshe Cohen-Eliya has issued a sharp warning against the processes currently led by Supreme Court Chief Justice Yitzchak Amit, comparing Israel's situation to the violent events that recently unfolded in Poland.

"When the right came to power in Poland, it appointed right-wing judges to the Constitutional Court who are anti-European. When the left won the elections in Poland in 2023, it didn't settle for appointing new left-wing judges, but sought to cancel the right's appointments, especially the appointment of the president of the Polish Constitutional Court," Prof. Kohn Eliya wrote.

"Yesterday a constitutional crisis erupted in Poland: the left-wing prime minister, Tusk, fired the president of the Constitutional Court from the right. Poland's president, who is from the right, ruled that the dismissal was unconstitutional, and the president of the Constitutional Court arrived at the court and riots broke out there that escalated into violence among the judges, with the question remaining open: whom to obey, the president of the Constitutional Court or the Polish government."

"Amit's nightmare — that the public will reach consensus"

According to Prof. Kohn Eliya, Yitzchak Amit is dragging Israel to exactly that point. "All along the way, the Israeli juristocracy is a factor creating chaos in Israeli society. During the reform period, the opposition was not interested in reaching consensus because it had no incentive to do so, knowing there was a reasonable chance the High Court would strike down any constitutional amendment. Even today, the juristocracy is the most polarizing factor tearing Israeli society apart."

"Amit's nightmare is that we'll reach constitutional consensus, since the powers that he and his colleagues in the Israeli juristocracy took for themselves without any authorization from the people — will no longer remain in their current monstrous dimensions, dimensions that have no parallel in the entire Western world."

"The system's hourglass is running out"

Kohn Eliya emphasizes that time is working against the legal system in its current form. "If after masses of protests, incredible funding that flowed against the reform, after October 7th and after all the storms and spins, Netanyahu remains prime minister and the change bloc stands at only 48 Knesset members — they have no future."

"Even if we go to another election, the hourglass is running out: Attorney General Gali Baharav-Miara is leaving her position in a year and a bit (February 2028), and Yitzchak Amit half a year after her (October 2028). The dysfunctional system that is rampaging in Israel in a way unprecedented in the world will not be able to continue functioning as it has until now."

"The brainwashing about democratic erosion"

"For years they brainwashed us about democracy dying in small steps in Hungary and Poland. This brainwashing grew in the legal academy in Israel by a stream that studies 'democratic erosion,' and was among the considerations that caused Mandelblit to file the absurd indictments against Netanyahu."

"But meanwhile we discovered that empirically there is no trend of democratic erosion in the world, but rather a strengthening of democracies, and that the left uses methods that are no less anti-constitutional than the right in Hungary and Poland. Democratic erosion, according to the leftists in the law faculties and in the Israeli juristocracy, is only what the right does, while the problematic and anti-constitutional steps taken by the left are merely 'democratic correction' or 'defensive democracy.'"

"If the juristocrats continue to make hypocritical use of ideas of 'substantive' or 'defensive' democracy to advance left-wing ideology, the result will be a loss of trust in the need for fair and neutral judicial review at all. If the juristocracy serves only the left, then it's better to return to the model of parliamentary democracy — the model that existed in Israel until Aharon Barak entered the Supreme Court."