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Leader comment: Courts under attack

by
14 July 2023

IT IS hard not to think of dominoes when hearing about the moves by the Israeli Prime Minister, Benjamin Netanyahu, to restrict the power of the Supreme Court in Israel. The independence of the Israeli judiciary, with its powers to judge the reasonableness of political actions, has been a significant corrective to a government that is now showing the flaws, as never before, of an electoral system that favours coalitions, and thus gives inordinate power to the smallest and least representative parties — in this instance, far-Right ones. Despite these flaws, Israeli democracy and its independent judiciary have been hitherto strong counter-arguments to those who wish merely to condemn the government for its treatment of the Palestinian people.

Mr Netanyahu’s determined actions against the Supreme Court in the face of unprecedented street protests is, however, only the latest example of a worldwide assault on the concept of disinterested guardians. It is, of course, the standard MO of autocratic rulers to undermine or remove any who are in a position to challenge their power, whether they be opposition parties, political rivals, or even members of their own families. Democracies are supposed to be different. Those chosen to rule are expected to remember that they are governing both their supporters and people who voted against them. But, since self-restraint cannot be relied on in those who win power, external checks and balances are necessary. These differ from country to country, but there are common elements that have proved to be effective, such as a functioning second chamber, fixed-term elections, written constitutions, and an independent judiciary with the power to hold the government to account. Each of these has been shown to be vulnerable when the electorate nods. The judiciary is particularly prone to attack for its scrutiny of politicians’ credentials. In Italy, for example, magistrates investigating the probity of several members of the right-wing coalition government have been accused of “choosing to play an active opposition role”. Another way to subvert a judiciary is to undermine it from within, as President Trump attempted during his time in office. In the UK, the damage is being done largely through financial constraints.

What is being harmed, above all, is the value of an independent arbiter. For democracies to function, it is important that voters continue to believe that men and women can act in a disinterested way to uphold laws and agreements. When, as now, political leaders feel at liberty to act without integrity, the upholding of the law must be performed by others. However frustrating independent scrutiny can be, and it is not always exercised perfectly, people in government and, more especially, people being governed should welcome and defend those who work to ensure that power is used responsibly and for the good of all.

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