EXPLAINER: Israeli judicial reform moving forward – now what?

For those who claim that Israel will no longer be governed by the rule of law, nothing could be further from the truth.

By Alex Traiman, JNS

Amid the largest and most well-funded protest movement in Israel’s history, the democratically elected governing coalition passed the first reform in a historic process aimed at bringing Israel’s activist Supreme Court in line with the judicial limitations present in most Western democracies.

With 64 votes in favor, Basic Law: The Judiciary will limit the court’s usage of an undefined “reasonableness standard” that has long served as an unrestrained lever to overturn Knesset legislation and executive policy.

Reasonableness has often been utilized by the court to reverse laws and policies that while not in direct contradiction to laws already on the books stood in contradiction to the limited worldview of a court that is dominated by secular, left-wing justices—a minority in Israeli society.

For those who claim that Israel will no longer be governed by the rule of law, nothing could be further from the truth. Should the newly minted law go into effect, the court will still maintain its authority to rule on petitions and even overturn legislation based on established legal principles. The court will lose its authority to overturn legislation on the discretionary basis of what it deems to be acceptable or proper.

Judicial Revolution

For decades, Israel’s Supreme Court under the leadership of former Supreme Court president Aharon Barak has amassed increasing authority in landmark, self-defined rulings, shifting the delicate balance of power between the three branches of government in its own favor.

This self-proclaimed judicial revolution determined that any issue—legal, procedural or otherwise—is justiciable. It allows for petitioners to bring cases to the court without standing and enables the court to cancel legislation; force the parliament to pass laws; and hamstring the activities of the prime minister and his or her cabinet. And it was all initially instituted without majority votes in the parliament.

The reform is just one component of a larger package introduced by the government several months ago. Amid protests and pressure from all sectors of society by those uncomfortable with the right-wing makeup of Israel’s democratically elected coalition, Netanyahu rescinded the larger reform package. He and his coalition partners then engaged the opposition in weeks of negotiations—headed by Israeli President Isaac Herzog—aimed at reaching a broad-based compromise arrangement.

Negotiations breakdown

In June, negotiations were halted suddenly by the opposition—ironically, at the moment the government voted to install an opposition lawmaker onto a judicial selection committee that is responsible for appointing new justices to the Supreme Court. The opposition had threatened to break off negotiations if their candidate, Yesh Atid Knesset member Karine Elharrar, was not installed on the committee.

Without the realistic possibility of a negotiated compromise, the coalition, in accordance with its campaign platform, advanced a singular component of its reform: to modify the reasonableness standard. The government selected reasonableness among all other reforms specifically because polls demonstrated that the issue was the most broadly understood by Israel’s public.

Opposition used to support reforms

In fact, prior to the formation of the current government, several opposition leaders, including Yair Lapid, Avigdor Lieberman and Gideon Sa’ar, have all spoken out in favor of judicial reform.

Yet once it was Netanyahu and a right-wing coalition that had both the votes and motivation to advance the overdue reforms, the very same policy that opposition leaders previously extolled was now un-kosher.

And since the initiators of judicial reform—right-wing, traditional and religious parties—were now in the driver’s seat, the opposition gave up on its previous reform-minded principles to protest the reforms with every ounce of their being.

Campaign to paralyze the country

While most of the protesters are typical law-abiding Israelis who care deeply for the state and its future, the organizers of the protest movement have demonstrated a willingness to tear the country to shreds while blaming all the damage—direct and collateral—on Netanyahu and his coalition partners.

Under coordination with Lapid, failed former Prime Minister Ehud Barak and an Israeli media industry hungry to push Netanyahu from office, pressure has been leveled on the government to drop the reform package by the Biden administration, American Jewish organizations and leaders, high-tech investors, international credit agencies and other entities.

Simultaneously, the opposition organized an extremely well-funded protest movement complete with the consistent unleashing of new organizations and campaign slogans printed on billboard-size signage, as well as costumes aimed at feeding headlines and photo captions for the domestic and international media. Protesters have repeatedly blocked highways, as well as Ben-Gurion International Airport, much to the chagrin of residents and tourists who have been caught in now-regular traffic jams over and above the ones that existed already.

Pre-conceived agenda

While the anti-reform protest appears to be a genuine movement, Barak had spoken of his agenda to overthrow Netanyahu using the tools he is now employing long before judicial reforms ever rose to the top of the policy agenda. Barak, who has documented ties to American accused pedophile Jeffrey Epstein, was one of the shortest-serving prime ministers in Israeli history. He was permitted by the courts to negotiate a failed land giveaway to the Palestinian Authority even after he lost his governing coalition—just one example of how the Supreme Court has historically protected left-wing policies even when such circumstances could have otherwise been deemed “unreasonable.”

Barak’s colleague, Lapid, said from the moment that he was thrown from the temporary prime-minister seat he briefly held that the incoming coalition would face an opposition unlike any other that had ever been seen in Israeli history and that the anti-Netanyahu protests he led during successive election campaigns would be just a taste of what was soon to come.

In the process, Lapid, Barak and others have insidiously claimed that it is Netanyahu who is leading the nation to civil war over reforms that a plurality of Israelis understood as necessary.

Worst domestic crisis?

Today, many are claiming that the current domestic policy crisis is the worst Israel has ever faced.

Such claims are made nearly 30 years after a left-wing government railroaded through the Oslo Accords aimed at reducing Israeli sovereignty in Judea and Samaria, and granting a Palestinian Authority led by arch-terrorist Yasser Arafat a state in the Jewish people’s biblical heartland. Such claims are also made nearly 18 years to the day after the Israel Defense Forces were forced to evacuate 8,500 tax-paying citizens from 21 established Jewish communities in Gush Katif and fully withdrew from the Gaza Strip.

Politicizing the military

In the case of the Gush Katif evacuations, numerous soldiers opposed the direct orders that they were given to carry out the evacuations on moral grounds. Yet they showed up nearly unanimously under the prevailing view that IDF orders were above politics and sacrosanct.

These days, led by Barak (a former IDF chief of staff), former generals and security officials as well as reservists—albeit, many of them retired—have threatened that they may refuse to serve should judicial reforms be passed. In other words, reservists, including air-force pilots, are threatening not to show up if orders are given to fight against Hezbollah, Hamas or Iran on the basis of political considerations that have nothing to do with orders that may or may not be forthcoming.

Both the highly unpopular and controversial policies of Oslo and Gush Katif tore at the very heart and soul of the Jewish people and its sparse territory. They were passed by the slimmest of majorities and carried out against the protests of masses of the public.

And it was during the Oslo process, just days after the assassination of then-prime minister Yitzchak Rabin, that Israel’s Supreme Court, led by Barak, unilaterally instituted a new policy requiring judicial review over legislation.

Ailing hearts

Even in the run-up to the short-lived negotiations period, Herzog extolled the need for judicial reform. He raced home from a visit to Washington, where he met with U.S. President Joe Biden in the Oval Office and addressed a joint session of Congress, to discuss possibilities for a last-minute compromise in person with Netanyahu, who was recovering from pacemaker surgery in Sheba Medical Center.

It may appear beyond coincidental that at a moment when the heart of the Jewish nation is ailing, its embattled leader, who personally represents so many of the contradictions and conflicts inherent in Israeli society, is suffering from his own ailing heart. And yet, barely 48 hours after surgery, a visibly tired Netanyahu was present in Knesset for the second and third readings of one of the most controversial votes in Israeli history to pass the first component of judicial reform.

Are reforms worth the rift?

Many have wondered why Netanyahu would push forward the reforms when the opposition is so great, even as many Israelis support them. One can properly ask whether the societal rift—regardless of which side one holds responsible—is worth any benefits changing the judiciary may bring.

Yet there is a valid argument that precisely because the opposition has crossed so many redlines, essentially throwing the largest tantrum in Israel’s history, even a limited version of reform must be passed. Should the opposition claim a victory in halting any and all reforms, there is a significant risk that their tactics may become a methodology repeated anytime a policy is opposed.

Dueling protests

The legislation entered into law amid vehement demonstrations both in favor and against judicial reform. While most around the world have seen photographs of anti-reform protests, two mammoth demonstrations in favor of the reforms, including one Sunday evening, also garnered hundreds of thousands of attendees.

In a surreal situation on Sunday, a sea of anti-reform protestors can be seen heading down the massive escalators at Jerusalem’s Navon train station heading home from a protest against the reforms, while an equally sized sea of supporters was heading up the adjacent escalators to a demonstration of their own.

So while hundreds of thousands of Israelis demonstrably oppose the passage of even the slimmest of reforms, an equal to larger number of Israelis who elected the current coalition following repeated attempts to oust Netanyahu and his coalition partners support their government’s efforts to institute such reforms.

Constitutional crisis

And if Israel has not been through enough already, Monday’s vote may not prove to be the climax of the crisis. The Movement for Quality Government (MQG) has already announced that it is petitioning the Supreme Court over the legality of the new legislation.

MQG is far from an objective observer. The NGO has been an active opponent of Netanyahu for years and was an early leader of the anti-reform protest movement. Worse, the organization has admittedly received funding from the U.S. State Department, ostensibly for educational programs.

There is a strong likelihood that the court will find a means to invalidate the legislation aimed at curbing the very court that will be ruling on the legislation, representing a severe conflict of interest and creating a bitter constitutional crisis in a state without a constitution.

Even if the court somehow permits the reform, opposition hopefuls such as former IDF Chief of Staff Benny Gantz have vowed to undo the reform should the right wing suddenly find itself out of power.

Competing visions for the Jewish state

Yet what underlies the current crisis is not whether Israel has a constitution or whether the Supreme Court should be able to exercise a standard of reasonableness when judging policy or legislation. At the core of the matter is the face of the Jewish state in the years ahead.

For the first time in the history of the nation, right-wing, traditional and religious parties have established a governing majority without the need for left-wing partners. And on the basis of demographics, there is the likelihood that the current coalition may not be an outlier.

‘King Bibi’ or judicial oligarchy?

Opponents of the reform fear a “King Bibi” who has defected from the secular elite and the political center to form an ideologically aligned right-wing government that prioritizes traditional Jewish values over more liberal and progressive philosophies. Supporters of the reform fear a Supreme Court that has asserted itself as a self-appointed oligarchy over the elected branches of government.

Israel’s right wing sees the country as ultimately standing alone, both in the region and on the global stage. It views Israel as a nationalist entity with firm sovereign rights in Judea and Samaria—a nation that must maintain strong borders and serves as a protectorate of Jewish traditions.

Israel’s left wing sees the state as an extension of Western Europe on the Eastern Mediterranean that fosters a secular and liberal haven, encourages progressive expressions, and serves as the incubator for a startup economy.

With traditional Jewish values clashing with new progressive norms in Western societies—and polarized governments and their media outlets the new normal in democratic nations—the differing worldviews have been highlighted in the battle between a right-wing government and a left-wing court.

Need for coexistence

Yet the truth is that both the composition and the idea of Israel aren’t one reality or the other. They exist as a complex balance of worldviews that must find a way to continue to co-exist. And while fragile, the balance has lasted until now with dynamic results. Yet increasingly, too many of Israel’s leaders see the nation through limited lenses. For the judicial reform crisis to dissolve, at least one side, if not both, will be forced to compromise.

For the moment, a bitter crisis ensues with the historic passage of an overdue reform.

Alex Traiman is CEO and Jerusalem Bureau Chief of Jewish News Syndicate.

anti-government protestBenjamin NetanyahuIsrael Judicial SystemJudicial reform