Fern Reiss

Will Bibi’s legacy be a new constitution for Israel or civil war?

We need to incentivize the prime minister to ensure changes to the Basic Laws require a super-majority - for the sake of the country
Demonstrators rally in Tel Aviv to protest the Israeli government's overhaul of the judicial system, on February 18, 2023. (AHMAD GHARABLI / AFP)
Demonstrators rally in Tel Aviv to protest the Israeli government's overhaul of the judicial system, on February 18, 2023. (AHMAD GHARABLI / AFP)

Everyone knows the scene in Fiddler on the Roof when someone says, “He’s right, and he’s right? They can’t both be right!” and Tevye strokes his beard and says, “You know, you are also right.”

That’s where we are right now with judicial reform in Israel: everyone is right.

The right wing is right. It’s no coincidence that it was about 30 years ago, when the Israeli left began to lose elections, that the (appointed, not elected) judiciary began to expand beyond their formerly-acknowledged boundaries. No one really empowered the courts with the authority to transform “advising” the Knesset, to ”ordering” the Knesset, effectively canceling new legislation before it was even introduced. Right-wingers accurately saw this as a left-wing power grab. Nor are they wrong to think the self-perpetuation of letting the current court appoint new court members is far from ideal.

The left wing is also right. Because Ben Gurion avoided creating a proper constitution, because the executive and legislative branches here are effectively the same, because there is no Federalist power, Israel doesn’t have the checks and balances that protect citizens in most democracies. If the Israeli judiciary doesn’t have a way to overrule the executive branch, then a very thin veneer of Knesset good-will is all that protects Israeli citizens from possible excesses. The left doesn’t want things like religious coercion. They don’t want a ruling coalition that can change election law and stay in power forever. They don’t want a Knesset that can overrule the High Court with just the slimmest of 61 votes.

So everyone is right. And recent polls prove it: we’re agreed. Seventy percent of Israeli voters oppose the details, and the speed, of the current judicial reform. Right wingers, left wingers; religious, secular; Arab, Jew. We’re communally united in our discomfort with what is happening.

Even some of those who support judicial reform think it’s gone too far, too fast. The external ramifications are frightening, and likely to get worse. Businesses and financial institutions are fleeing; world leaders are resoundingly opposed.

There’s probably no such thing as good timing for a civil war, but given how perilously close we seem to another intifada, not to mention uranium enrichment courtesy of Iran, and with antisemitism at an all-time high when Jews worldwide may need us as a refuge, Israel right now can ill afford internecine discord.

Don’t think civil war is possible? What will happen when the Knesset and Supreme Court give the IDF, or the police, different orders? It’s already happening: reservists are threatening to boycott miluim (reserve duty). That is how civil wars start; that’s how totalitarianism starts. No one really wants this (except maybe Iran.)

We need to figure out a way to begin compromising. What we need is a middle ground, and fast: an agreement that if we want to continue to be a democratic nation, we can’t limp along without something resembling a constitution much longer.

We need a bi-partisan agreement that Basic Laws should require a super-majority (perhaps 80-100 members of Knesset), rather than a simple majority. That would mean you’d really need a national mandate for significant change, rather than just one fluky election or two.

What we need to consider now is how to incentivize the various players to bring this about. We need to consider what can be offered, and to whom, to actualize this. If such a negotiation requires a full pardon for various politicians, so be it; if it requires handing out more money or more appointments, that’s okay too. Our priority needs to be the country; the high moral ground isn’t always the smartest path.

We need to appeal to Gantz and Lapid, to compromise for the common good. We need to appeal to Herzog, to take a leadership role before it’s too late. We need to appeal to the members of the Likud, to use their control over the coalition to restore calm.  We need to appeal to friends and influencers worldwide, to put pressure on our politicians.

We need to appeal to Prime Minister Netanyahu, to choose to be remembered by history for the legacy of creating Israel’s constitution, and soothing what could have been a civil war.

Of course, we shouldn’t have waited until now to initiate this conversation. We should obviously have held it under the government that recently disbanded. And the level of rhetoric and hyperbole, the calls for violence, from both sides, are dismaying. But we need to put that into our past, and move forward. We need to put the sweeping changes on hold, until tempers have calmed and a discussion can take place.

We should see this time as an opportunity and a challenge: to harness the energy created by this real-life civics lesson, to engage the young people of Israel, to pull together to combat the existential threats we face.

Let’s not celebrate Israel’s 75th birthday this spring with a civil war. Let’s celebrate it with a constitutional overhaul, and prove that our start-up nation is as resilient as we like to think it is.

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