Will today’s vote removing “reasonableness” drive Israel to civil war?

Making sense of Israel’s proposed judicial reform

The judicial reform being proposed by Prime Minister Benjamin Netanyahu’s government has drawn polarizing arguments from both proponents and opponents and has sparked massive nationwide protests, strikes and general disruptions including thousands of military reservists who are refusing to serve should this legislation be approved.


Arguments have deeply divided society leading to fears of a civil war and – with reservists also threatening to strike – placed national security in jeopardy. 


What exactly is going on in Israel? What can we make of this legislation that has taken the nation by storm?


Today (July 24, 2023), Knesset members passed one of the most controversial cogs in the wheels of the judicial reform package: removing the reasonableness standard in judicial review. 


And it follows the perfect (political) storm. Tens of thousands of Israelis surrounded the Knesset after having camped out for two nights in hopes of blocking the vote and faced off with police. In case tensions weren’t simmering enough, a heat wave has been suffocating the nation with temperatures rising into the 90s for days on end now.


What’s more, Netanyahu has been hospitalized twice in the past week – once for what they called dehydration, but then again on Sunday to install a pacemaker after he experienced cardiac issues. 


Worse? Tisha B’Av is this Wednesday night/Thursday, placing us in the time of the Dire Straits when great tragedies have befallen the Jewish people throughout history including the destruction of both the first and second Temples. 


This judicial reform debate is probably the most complicated issues that Israel has faced since I moved here more than 20 years ago. As a journalist I have spoken to people on both sides. As a resident, I have friends who are firmly on one side or the other. Some religiously attend protests and fear the country is headed toward dictatorship. Others welcome restraints on a court they say is out of control and doesn’t represent them or their interests.


So what is this legislation all about? Who is right? Is this a classic case of Left vs. Right? What is significant about the timing? Why is America interfering in the process?


I will attempt to answer some of these questions based on my own interviews and research, but admittedly, explaining this issue will take many more words than I can use in a single article.


What is the goal of judicial reform?

While even many opponents of the current legislation say the judicial system needs some reform, three specific items in the current legislation have evoked major push back. These call for:

      1. a simple majority parliamentary override of Supreme Court decisions
      2. changing the composition of the judicial selection committee
      3. canceling “extreme unreasonableness” as a standard in judicial review

    The Knesset passed #3 today, so let’s focus on that. 


    Arguments in favor: Knesset Member Simcha Rothman, head of the Constitution, Law and Justice Committee which brought the bill to the floor, has argued that unelected judges and the attorney general should not have the ability to overrule the decisions of elected officials.


    “Israel is the only country in the world that has the position like the chief legal advisor that is so powerful,” he said.


    Now, with the government leaning right and the courts leaning left, Rothman said the court is overriding the will of the people by overturning government decisions. He said removing the court’s ability to rule based on reasonableness will return democracy to Israel. 


    Against removing reasonableness: Opponents argue that the reasonableness standard provides a check on the government from being able to appoint or fire at will. The standard has only been used 10 times, said Yohanan Plesner, president of The Israel Democracy Institute (IDI). 


    “It provides the ability to be part of the discussion for the decisions to make sure they are transparent, detailed and explained,” he told reporters today in a briefing, and it is “the main tool of judicial review over the executive branch.” 


    Will judges be able to develop alternative doctrines, I asked? “If we’re removing it in an era when the judicial system isn’t confident, I’m not sure an alternative will evolve,” Plesner said. 


    Will Israel become authoritarian? “We’re moving much closer in that direction and this is one component,” Plesner said. 


    How did this particular clause get its start start?

    The new government passed a law in December enabling Aryeh Deri – convicted on charges of corruption and tax evasion more than once – to be appointed to a Cabinet post by changing the standards for serving as a minister and removing the label of “moral turpitude” except for custodial prison sentences.


    But in January, the Supreme Court rejected Netanyahu’s appointment of Deri saying it was “unreasonable in the extreme” for Deri to serve as a minister due to his prior convictions.


    This new bill places ministerial appointments outside the purview of the courts meaning the AG cannot reverse the decision should Deri get appointed now.


    Protestors marching on the Knesset Tuesday night.

     

    What happens now?

    Protestors will likely continue into the night if not regularly in the next few weeks. More protestors poured into the streets of Jerusalem and Tel Aviv right after the 64-0 vote (the opposition boycotted) joining the tens of thousands outside the Knesset in Jerusalem.


    Will reservists stay true to their threat to refuse to serve? Will unions and businesses strike? 

    Politically, some likely scenarios include the current attorney general being fired and replaced. We can also expect the appointment of Deri to the Cabinet.


    Opposition leader Yair Lapid promised that the opposition will immediately appeal the newly passed legislation to the Supreme Court tomorrow. Yes, the very same Supreme Court.


    The Supreme Court could rule that this new law is… unreasonable in the extreme! And then we await a standoff.  


    Also, further in the future, Netanyahu can appoint a new attorney general who could, imagine this, close down Netanyahu’s ongoing trial.

     

    Where are Israel’s checks and balances?

    Israel has three branches that can be loosely compared to the American system of government. There is the entire 120-seat Knesset, the legislative branch; the coalition (majority of the Knesset) led by the prime minister is the executive branch; and the judicial branch comprised of the courts and the attorney general.


    Here’s the major difference: the prime minister’s coalition controls two of the three branches, the executive and legislative. This has created an atmosphere where the court is the sole check and balance provider of the government. 


    Israel also does not have a constitution. Instead, the courts use the “Basic Laws” which function as the legal framework of the country.


    Can anyone truly say this is what the people want?

    What about the “democratically elected” government and its mandate for this current judicial reform? Didn’t the people vote for judicial reform by virtue of voting for this government? 


    Not necessarily – and here is where it is important to understand the composition of the Israeli government and its elections.

    In the last election some 40 parties were on the ballot. Only about 10-12 cleared the threshold to make it into the government. Netanyahu’s Likud party got the most votes – not 50% of the entire vote, but enough to earn the task of building a “coalition.” A coalition has a majority of the 120-seat Knesset. 


    Netanyahu’s party got 32 seats. He needed to get other parties to add their seats to his coalition him in order for him to serve as prime minister. 


    “Coalition building” is where “democratically elected” ends and negotiations begin. Parties will bargain – their seats in exchange for cabinet positions, support on desired legislation, larger budgets for their special interest groups, etc. etc. The wishlists come out and agreements are made and signed. 


    Because of this it is hard to characterize the Israeli government as “representative.” The parties do not represent geographic areas such as representatives in American states. They usually represent a special interest, a political persuasion or a religious group.


    In this current Knesset, the second largest party with 24 seats is led by Yair Lapid, but is not in the coalition. Netanyahu ultimately made a deal with Religious Zionism (14 seats) and two ultra-Orthodox parties (Shas, 11 and United Torah Judaism, 7) giving him a collation of 64 seats and the ability to pass legislation as long as the coalition voted as a bloc.


    Who is leading the anti-reform protests?

    Though most “left wingers” are against the judicial reform, not all the protestors and opposition are “left wing. Aside from hundreds of thousands of regular Israelis who disagree with the legislation, some of the anti-reform leaders include former Prime Minister Ehud Barak and Yuval Noah Hariri, both known for their involvement in shady causes including Barak’s connection to Jeffrey Epstein and Hariri’s emergence as a World Economic Forum spokesman. 


    Other protest leaders from from the “Crime Minister” movement which is solely focused on removing Netanyahu from office and who religiously conducted demonstrations outside the prime minister’s Balfour residence for years before COVID. 


    Interestingly, these same protestors took a hiatus from their weekly demonstrations when Bibi put COVID restrictions in place. You have to remember that Israel had some of the most draconian measures of lockdowns including of schools, businesses and for several weeks of the airport itself for citizens trying to return home. But Netanyahu was not blamed for these.

     

    During this time, the special powers law was enacted, giving the government sweeping powers to make immediate decisions on what would be a “reasonable” response during the pandemic. This was not opposed by these same protestors back then. The special powers law was extended during Prime Minister Naftali Bennett’s one year in office. I am not sure if it expired, which it was supposed to in the summer of 2023.


    Why is the United States interfering?

    Opponents of the judicial reform proposals believe that if passed, the balance of power will tip in favor of the government and threaten basic rights and leave minorities unprotected. They see the reforms as harmful to democracy.


    With Israel’s current right-wing religious government in place, the international community (and many Israelis!) fear an onslaught of uncontested firings, hirings and laws that could affect minority rights and possible human rights violations (ie Palestinians, Muslims, Christians, Messianic Jews) with yes-men and women appointed to high positions in order to rubber stamp government whims.


    This in turn will have a negative impact on Israel’s credit rating. A less democratic society would be less appealing to the young and educated in the work force and cause a “brain drain” in key markets such as high tech. 


    Opponents fear the power tipping the government’s favor could also lead to clamping down on basic freedoms such as worship and speech.


    How do local believers feel about this?

    Just like the rest of the Israeli people, local believers are split on the issue. Some voices in the Christian/Messianic world are loudly supporting the judicial changes and calling the protestors “left wingers” and progressives who are associated with the LGBTQ  movement. They are comparing the situation to President Donald Trump in the U.S. and conservative vs. liberal.


    However, this is a myopic view of the situation and obfuscates the reasons that many believers are actually opposed to the legislation in its current form. The court, though traditionally liberal, is the last line of defense for certain groups. Including religious minorities of which the believers here are.


    The court hasn’t always been a voice for Messianic Jews, Palestinians, Christians etc. and has many times ruled against them. But it did provide for most people at least one more line of defense when seeking justice. 


    What do you think of this issue? Leave a comment below!

    2 thoughts on “Will today’s vote removing “reasonableness” drive Israel to civil war?”

    1. Great summary, Nicole! Is there any desire within Israel to create a Constitution as we have in the US? One that can be amended only through the rigors of votes and consensus between the executive and legislative branches and a majority of States?

    2. Great overview of the situation. This is such a complex issue. It seems to me that both sides have valid arguments. But where does Israel go from here? Without a constitution Israel will constantly face this turmoil.

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