Expert Analysis
Over the last twelve weeks, Israel has been in the throes of the longest and most divisive public debate since the State was founded nearly 75 years ago. Since Minister of Justice Yariv Levin presented in a live televised broadcast the four initial elements of his plan to realign the relationship between the three branches of the Israeli government on January 4, hundreds of thousands of Israeli citizens have taken to the public square across the country to protest what they view as dangerous proposals that will place an overabundance of power in the hands of the Executive Branch without appropriate oversight.
High tech executives, start-up entrepreneurs, physicians, retired justices, investors, reserve officers and other cohorts that have traditionally not taken leadership on politically contentious issues have organized in great numbers, creating an unprecedented sense of general hysteria and foreboding.
Calls for insubordination, withdrawal of investments and civil disobedience became commonplace, touted by leading public figures such as former prime ministers Ehud Barak and Ehud Olmert. Detractors of the plan argue that if the package is passed as proposed, Israel would turn into a veritable dictatorship led by a prime minister who has led six governments over a 16-year period and who is hampered by court cases involving charges against him including charges of bribery, fraud and breach of trust.
The opprobrium has reached so deep that even El Al pilots initially refused to fly the Prime Minister on his state visit to Italy and an interpreter engaged to translate his speech into Italian at Rome’s Great Synagogue refused to do so. Heads of state, Jewish diaspora leaders and ambassadors also have waded into the fray against the proposed reform.
Until the announcement by Prime Minister Benjamin Netanyahu that he would postpone further action on the plan and allow the next Knesset session—that begins after Passover and runs until July—for talks with any willing opposition leaders to work to reach a mutually-agreeable compromise plan—there was a clear and present foreboding that the State of Israel was heading intractably toward anarchy and a deadlock between the judicial and executive/legislative branches of government.
Calling on the Judgement of Solomon, Netanyahu said he would not allow the State of Israel to be dismembered and, like historic leaders of the Right, Ze’ev Jabotinsky and Menachem Begin, swore off civil war. At the same time, Netanyahu rejected calls not to serve in the army: “Refusal to serve by one side will lead to refusal to serve by the other. Refusal to serve is the end of our country. Therefore, I demand that the heads of the security services and of the army vigorously oppose the phenomenon of refusal to serve, not contain it, not understand it, not accept it – but put a stop to it.
Those who call for refusal to serve, those who call for anarchy and violence, are knowingly cutting the baby in two. But the overwhelming majority of Israeli citizens on both sides of the divide do not want to rend the infant. They are unwilling to cut the nation in two.”
Leaders of the two major opposition parties—Yair Lapid (Yesh Atid) and Benjamin Gantz (National Unity)—indicated they would give negotiations under the tutelage of President Isaac Herzog a chance. Teams have already met and although activists on the Left have called to continue the struggle against Netanyahu, the wind has, at least temporarily, been taken out of the sails of the protesters while negotiations begin.
It bears mentioning that Prime Minister Benjamin Netanyahu under whose watch these sweeping reforms had been moving ahead, had in the past been an outspoken defender of an independent judicial system in Israel while leaders of today’s opposition parties, among them Avigdor Liberman, were among its chief detractors, promoting the creation of a Constitutional Court in order to delete judicial oversight of legislation from the authority of the Supreme Court. Then it was Netanyahu who “put the brakes” on Lieberman’s proposal who was a minister in his government.
The anti-reform demonstrations blocked major thoroughfares for hours at a time, including access to Israel’s only international airport—forcing Netanyahu to take a helicopter to the airport for his departure for Italy rather than his usual motorcade.
While only minor altercations between demonstrators and police have been reported, there was concern that the spiral of agitation, radicalization and violence could have spilled over and resulted in casualties that would have ignited an already combustible atmosphere.
Indeed at one point, the level of violence increased as some protesters in Tel Aviv threw rocks at police who responded with stun grenades, water guns and horses. The turmoil caused by the cycle of mass demonstrations and unrelenting media amplification has blown wind into the sails of those who hope this momentum would force Netanyahu to call new elections—the sixth in four years.
On the other hand, the governing coalition, that enjoys a modest but solid majority in the Knesset of 64 Right-Religious members out of 120, has presented the reform package as necessary shock therapy to swing the pendulum of judicial activism, judge-made law and overextension of judicial prerogative back into balance.
They claim that former Supreme Court Chief Justice Professor Aharon Barak violated the balance of power in 1993 when he unilaterally appropriated the authority to cancel primary legislation based on the court’s own perception of “reasonableness”—an original legal doctrine that prevented successive Right-wing governments from implementing policy on issues such as detention of African migrants, the preferred route of the Security Barrier, the exemption of yeshiva students from army service and the appointment of senior civil servants and even cabinet ministers.
Right-wing governments have viewed the courts as a bastion of Western-Liberal values that gave short shrift over the past three decades to Jewish-Zionist values upon which the state was founded.
The Right has sought judicial reform for 30 years, sparked by controversies relating to negotiations with the PLO and the evacuation of Israelis from the Gaza Strip and Northern Samaria. These processes left a deep wound.
Another player in this drama is Attorney General Gali Baharav-Miara—a holdover from the previous government of prime ministers Naftali Bennett and Yair Lapid, and Minister of Justice Gideon Sa’ar.
Whereas under the last government Baharav-Miara found no fault in any of the government’s actions—including a heavily challenged gas deal with Lebanon that was passed by a cabinet led by then Prime Minister Lapid. Seemingly every decision by the current government is challenged by the AG. These include the recent attempt by the Chief of Police to reassign the Tel Aviv district commander Ami Eshed—who has had to contend with the largest weekly demonstrations in Israel’s secular stronghold—to head the training division as part of a round of appointments of top police brass.
Baharav-Miara has also deemed that under her 2020 conflict of interest arrangement, Netanyahu—who is seen by many, reportedly also by President Isaac Herzog himself, as the only person who could resolve the current impasse and impose revisions to the plan on Levin and his coalition partners—would be in violation of his conflict of interest agreement if he dealt directly with the judicial reform as it could affect the outcome of his trials. She has also allowed a petition by the Movement for Quality Government in Israel—an acknowledged opponent of Netanyahu and his government that has received U.S. State Department funding—to declare Netanyahu unfit to serve, to advance to the Supreme Court. The petition argues that Netanyahu must be removed from office since the judicial reform itself is a violation of this conflict of interest agreement.
The Opposition, recognizing its weakness in the Knesset, has therefore taken the fight to the streets and to the media, while it delegitimizes and demeans the legislative process.
Opposition leader Lapid has vowed to boycott any final vote on the reform damaging Israel’s public image and painting it as an authoritarian country with one-party rule. Opponents of the reform regularly use inflammatory rhetoric to exacerbate the tension, including a statement by Aharon Barak who said he is ready to stand in front of a firing squad if that would help to pull back the judicial reform. Doomsday predictions of the end of democracy and economic and diplomatic collapse are rife.
In addition to the four main amendments of the judicial reform package—adoption of a clause that would allow the Knesset to override Supreme Court decisions declaring legislation illegal; amending the composition of the Judicial Selections Committee so that the government would essentially have a majority and lowering the retirement age of judges to 67, in line with the general workforce, that will allow greater turnover and variety among the Supreme Court judger; canceling the doctrine adopted by Aharon Barak that allowed the Supreme Court to judge Knesset legislation, appointments, or other government decisions on the ephemerous grounds of “reasonability”; appointing ministry legal advisors by directors general as a position of trust rather than by tender—other laws and amendments promoted by this government are proving no less contentious. These including the death penalty for terrorists, canceling the “grandchild clause” of the Law of Return, reversal of the Disengagement Law, adopting a law that would allow the prime minister to receive donations to cover his legal defense, reversal of the Supreme Court’s decision to remove convicted Shas party head Arie Deri from his posts as Minister of Health and Minister of Interior and amending the law under which the prime minister can be removed from office. Some of these proposals have already passed preliminary muster in Knesset committees and in first readings in the plenary.
The prospect of a head-to-head conflict between the judicial and legislative branches is no longer unthinkable, including the issue of a decision by the court to adopt the Movement for Quality Government petition and declare Netanyahu unfit to serve.
Even if the talks at the Presidents House succeed in reaching a compromise, irrevocable damage has been done to the very fabric of society in Israel, already fissured along many political, religious and ethnic lines. Leaders will have to go to great lengths to try to pull the country together again, as it faces existential threats from enemies who see the current dissension as an opportunity to strike.
Alan Schneider is the director of B’nai B’rith World Center in Jerusalem, which serves as the hub of B’nai B’rith International activities in Israel. The World Center is the key link between Israel and B’nai B’rith members and supporters around the world. To view some of his additional content, click here.