Judicial Reform – After Netanyahu Blinked

The Lesson That Is Never Learnt

It is Parenting 101, and the lesson Israel refuses to EVER learn: Follow through on what you say you’re going to do and never give in to a temper tantrum. The Arabs stage an intifada, we give them Gaza. The left shuts down the country, the government stops the legislation they’d vowed not to stop. How can anyone take you seriously when your word means nothing?

What’s worse is that Israel always puts its foot down first, makes itself look horrible to everyone watching and only then backs down, once all the bad PR is out there. One of the prime examples (among dozens) is all the times Israel was going to dismantle Khan Al-Ahmar (an illegal Bedouin Arab settlement right on the shoulder of Route 1), causing all kinds of pushback from the US and EU, only to petition the Court itself for a delay in knocking it down. There is a life lesson here: There is no disgrace in fighting a battle to the end and losing, but if you’re going to give up, do it early and spare everyone the collateral damage.

Of course the capitulation has not led to a cessation of protests, but to their continuation. They’re smaller in size, for now, but one of the protests has already led to the beating of a haredi couple who accidentally wound up in the middle of it. Now it’s not about the reform, but about the National Guard, proposed by Internal Security Minister Ben Gvir. It doesn’t really matter what the reason is, since there will always be a reason as there are plenty of contentious bills coming. It isn’t about any particular policy, but about the panic over losing control. Now Netanyahu, Gallant, et. al. have given them the tool to regain control, and who in their right mind would let go of that?

What To Expect Next

We can certainly expect more protests, but a lot of other damage has been done. We have aided our enemies by giving them the backing to boycott us. How can a state in the US, or another country make BDS illegal, when Israel’s own hi-tech sector has encouraged pulling money out and making sure none of a company’s intellectual property is here? And they’ll continue to encourage it, because they’ve found their own lever on power.

Worst of all is the army. The army has long had a policy that it was forbidden to give a political view as a soldier, in other words, in uniform or while naming your unit. It’s even forbidden to discuss politics within the army. Now, the Rubicon has been crossed and a 12-lane bridge installed. Soldiers not only state their political opinion as a pilot, or what have you, but decide whether or not to serve on any particular day based on the latest, non-army-related government decision or law. Until now, refusing to serve has been limited to those who felt an order was illegal, and only applied to fulfilling that particular order, and they often paid with jail time. Palestinian social media is already discussing – in true Haman style – whether to attack Israel, now that it’s weak, or let them destroy themselves.

Of course, those opposing this government – which is mostly the left, but includes some center-right – think these tactics will be limited to only their side. The Jewish Press reported that 200 Air Force ground crews are threatening not to serve unless the reform is passed. On the night that Netanyahu made the announcement stopping the reform for now, the right had its own counter-protest on behalf of the reform, demonstrating that there is no lack of numbers, or motivation on that side. The incredibly biased media assumes the right is more violent. If they’re correct, how will that Pandora’s box work out for you?

Everything I’ve said until now is the best-case scenario – that the coalition and opposition reach some sort of “kum-ba-yah” agreement about judicial reform. When they don’t, which is my prediction, we’re going right back to where we were. At least the right had the sechel (sense) to “file the bill”, which means it could be brought for a vote on 24 hours notice once the talks are over. But we’re not in the same position we were before the recent capitulation. If the legislation had passed, we would have been coming up on the Passover Knesset break with a fait accompli, where protesting would have been a little pointless when there’s nothing that can be done. A month to get used to a new reality might have cooled things off, but not this time. Of course, the right could capitulate completely, and it’s unclear how the right would handle this.

What Might Have Been

This is my view of what opportunity was there, which may now have been missed forever.

1. Make the Basic Laws immune from the Court. They themselves said they should be treated like a constitution, so let’s do that.
2. Make the Attorney General and Knesset’s legal advisers work for the Knesset, instead of vice versa. They can tell the Knesset that certain laws are a bad idea and likely to be overturned by the court, but that should be the Court’s decision, and they should be obligated to represent the case for the legislation or government action, not the case against, before the Court.
3. Make the Supreme Court constrained to only judge by Israeli law, not “reasonableness”, foreign law, “proportionality” or their feelings. Laws could still be invalidated as “unconstitutional” if they do, in fact, contradict Basic Laws.
4. Pick the most important issues and pass Basic Laws on them while the “getting’s good”: administrative detention, confessions under torture, non-Muslim prayer on the Temple Mount, removing the extremely subjective “racism” clause regarding who can run for Knesset and a haredi draft exemption (not because I’m in favor of it, but because Shas and UTJ can’t go without it).
5. Only then raise the threshold required to pass a Basic Law (or make them subject to a public referendum), as the reform opponents have requested.

As many have pointed out, with the Court limited to clarifying Israeli law and the haredi draft issue decided, an override clause would be unnecessary. The make-up of the judicial selection committee is important, but I don’t think it should have been top of the list. I think a failing on Israel’s part is to think in terms of personalities instead of systems. Similarly, I would never have put the laws to keep Netanyahu or Deri from being removed first. They are good and may have been necessary to keep the coalition together, but it makes the whole thing look petty.

There are more Basic Laws I’d like to see, but timing is critical. If the protesters are really ready to destroy the country, you need to get everything done before that becomes permanent. Once a higher threshold is locked in, and the Court can’t help them make law, perhaps they really would come to the table looking for a real compromise on other issues that have plagued the society for decades. You could, at that point, even call another election and give the opposition a Mulligan to see whose side the public is really on. Even if the right then lost, the most egregious aspects of Israeli governance would finally be taken care of.

Because someone will mention it, none of this has anything to do with creating a broad consensus, but broad consensus is the exception not the rule here. No one created a broad consensus over the Oslo Agreements, the Disengagement or Lapid’s giving away of Israel’s territorial waters to Lebanon without even Knesset approval (despite a law requiring a national referendum). They all irrevocably changed this country, and were all passed by a simple majority. In fact, it’s helpful to mention that the Basic Law: Human Liberty and Dignity, which the Supreme Court based our “constitution” on, only passed 31-24. So we’ll live with a lack of broad consensus now too.