Daniel Markind

The Argument Both Sides Must Lose

Never-before seen pictures from Israel appeared this week, as the right-wing government of Prime Minister Binyamin Netanyahu pushed through a change in what constitutes a “reasonable” decision of government.  This term has been used as a hook by “Bagatz,” the Israeli Supreme Court, to interject itself into innumerable Israeli government decisions, from ministerial selections to the propriety of a territorial treaty with Lebanon relating to natural gas development.

The “reasonableness” law is only the first step in what the Likud-headed coalition promised will be a further curtailing of Bagatz’s power.  Indeed reports are that future bills include the overturning of the ban on Shas MK Aryeh Deri’s participation in the Knesset following his bribery conviction, ending any corruption probe into Netanyahu himself and allowing the Knesset to overrule future Bagatz decisions.

Israel, like Great Britain and many parliamentary democracies, has no written constitution.  Israel only has a series of Basic Laws.  Similar to the United States (and unlike the UK), the Israeli Supreme Court has wielded the power to overrule government decisions.  As in Israel there in no ability to do so based on a concept of unconstitutionality- as there is no constitution – Bagatz has based its decisions on the concept of “reasonableness.”

In doing so however Bagatz has injected itself further and further into Israeli political life, to the point of almost acting as a super legislature.  Over the last few years Bagatz has butt its head into many places where it probably shouldn’t, such as natural gas development.

The fact that Bagatz has become so intrusive is magnified by the curious way Supreme Court Justices are chosen.  In Israel, the current Supreme Court justices and the Israeli Bar Association each possesses much influence over the selection process.  Historically these two areas have been dominated by the Israeli left, and the current system perpetuates this, regardless of the political makeup of the body politic.  Thus the left always seems to possess outsized influence over the ultimate direction of the country, regardless of what the Israeli citizens think.

To the left, who as in most parts of the West control most of the news media and information flow, this is no problem.  To the rest of Israeli citizens this produces a seething resentment.  Perhaps no issue exemplified this recently more than Bagatz  preemptively ruling that the 2022 agreement by the left-wing Lapid government with Lebanon over the demarcation of the maritime border to allow natural gas development was reasonable.

Under heavy pressure from the Biden Administration, Lapid basically gave away the entirety of Israel’s position for a vacuous promise of royalties from the Lebanese gas sale.  How that promise could be implemented was not stated.  Likely it won’t be.  In fact, the agreement basically was a sell out.  Israeli elected officials were not allowed to weigh in on the agreement however, because all-powerful Bagatz spoke.

This perpetual tilting of the political playing field has and has had a corrosive impact on Israeli political society.  An entire segment of the Israeli political spectrum has grown bitter about the control over their lives held by an unelected few, who often don’t represent their beliefs yet continue to interject themselves deeper into every day life.  Most importantly perhaps, those on the left appeared to have little understanding of this, almost believing it to be the natural order of things.  So long as they had ultimate control, they saw no reason for anyone to believe anything was wrong.  Recent events have disabused the left of this belief, which in the long run will be a good thing.

Of course however, the right did not limit itself to rebalancing the political pitch.  Ignoring all efforts by people such as President Issac Herzog to forge a proper compromise, the Right turned the issue into one which appears to be at its core a political power grab.  If the political right had legitimate reasons to demand changes in the way Supreme Court Justices are chosen and the way they can inject themselves into political issues, the left has every reason to despise and oppose efforts to enshrine Haredi military service exemptions into law, to possible insulate corrupt politicians from Israeli justice and to give the government at the time the power to overrule Bagatz decisions, among other things.

And oppose they did, in ways never before seen- tens of thousands blocking main roads, marching to Jerusalem and refusing military service.  These were scenes that both showed that the left can mobilize its supporters also, but also gave comfort to the likes of Hezbollah’s Sheikh Nasrallah, who gloried in what he called Israel’s worst day.

That it was.  Little about Monday was positive.  Right wing supporters who chafed at the intrusions of Bagatz succeeded only in politicizing its proposed solution, not solving the basic problem.  Left wing supporters who claimed the mantle of democracy for themselves reminded all who do not completely share their views why this whole mess started in the first place.  Neither side looked good.  Given the arrogance of the left and the obstinance of the right, a “victory” for either side would be bad for Israel, and bad for democracy.

No country has true democracy, but to make it work no singular group can perpetually maintain its authority over another, and conversely no group can claim that upon taking political power it unilaterally will control all power, including the right to immunize its own people from their personal malfeasance and to require others to protect and pay for its supporters as those supporters avoid national military service.

The best result now would be one akin to the Cuban Missile Crisis.  Both sides go to the brink, both sides turn back and quietly reach a compromise both can live with, yet both sides become traumatized by how close they came to mutual destruction.  When that is the best one can hope for, one understands how serious the situation has become.

About the Author
Daniel B, Markind is an attorney based in Philadelphia specializing in real estate, commercial, energy and aviation law. He is the former Chair of the National Legal Committee of the Jewish National Fund of America as well as being a former member of the National Executive Board and the National Chair of the JNF National Future Leadership. He writes frequently on Middle Eastern and energy issues. Mr. Markind lives in the Philadelphia area with his wife and children.
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