Donna Robinson Divine

The judicial reforms: Why take the risk?

Defenders of the judicial reforms proposed by Israel’s Minister of Justice with the strong backing of the country’s Prime Minister, Benjamin Netanyahu, have grounded the legitimacy of the initiative in the recent election—described by them as a virtual referendum on the current legal system. The judiciary, according to their views, has given momentum to forces attempting to cancel the election outcome by indicting Benjamin Netanyahu and by driving him via legal fiat from an office voters wish him to hold. These same reform defenders dismiss the so-called the tsunami of criticism directed at the proposed legislation as coming from elite progressive forces arrogating to themselves a cultural power not only to repudiate the preferences of ordinary men and women but also to deny them their electoral choice. But as much as the first claim is unverifiable, the second is demonstrably false. Let me explain.

The tangle of motivations of people who cast their ballots for Likud on November 1 in this Israel’s fifth election in three a half years was, by all accounts a dense mixture almost impossible to dissolve into neat categories: for many, voting for Likud is a family tradition; for others, it may have been thought the only way to stabilize the government. A scan of the speeches and ads publicized before the election finds few comments on judicial reform. It was certainly never proclaimed the campaign’s defining issue. Netanyahu’s judicial exposure has gone on for over three years certainly intensifying the political instability and fragmentation. That voters have been willing to ignore these problems offers no warrant for rebalancing the government through major judicial reforms. After all, the sixty-four parliamentary seats won by the prime minister and his coalition are said to provide a comfortable margin for the conduct of the nation’s business.

Still, the savage polemic against the reforms’ opponents is as troubling as it is wildly misplaced. As much as it stretches the term ‘progressive’ or ‘leftist’ for Yair Lapid, Beny Gantz, and Gideon Saar, to bestow the same storyline category on high tech or Bank of Israel executives or the former head of security services is the kind of wild hyperbole more appropriate for a twitter rampage than for serious consideration.

The priority of judicial reforms has done much to produce disapproval from the very experts Prime Minister Netanyahu once valued and consulted: economists associated with the Bank of Israel and the National Economic Council. They have reminded the prime minister that investments flow to countries whose legal system insures the rule of law rather than simply the will of the people. Appeals to the Prime Minister to consider one or another compromise have been quickly dispatched, probably because reform proponents realize they can meet and defeat any serious challenge in the Knesset. And although the current coalition may be able to steamroll the reforms into law, it will not be able dictate the algorithms mapping the direction of global investment funds.

Attempting to convince opponents, advocates for the reforms have cherry picked particular aspects of the proposals to assert some correspondence with judicial procedures in the United States. But such comparisons ignore the more critical differences. Israel has no written constitution nor does its parliamentary system provide the same guardrails against abuse that can be found in America’s three branches of government intentionally designed to provide ‘checks and balances.’ While it is difficult to predict how these changes will affect the protection the current system affords minorities, the endorsement they have received from coalition parties that typically equate the terms ‘individual rights’ and ‘basic freedoms’ with attacks against Israel’s status as a Jewish state raise serious and legitimate concerns.

Of course, the consequences of passing these reforms are not yet fully knowable. But if they extricate Prime Minister Netanyahu from his current legal troubles and return Arye Deri to his ministerial positions despite the recent Supreme Court order denying him these offices, they will stain Israel with an image of corruption. And while these reforms are viewed by those advocating for them as an ordinary exercise of sovereignty, they are interpreted quite differently beyond Israel’s borders by institutions absolutely capable of imposing a steep price on the country’s economy and well-being. Why take such a risk?

To return this essay to where it began is to mark the disappointment of Israelis who voted for parties promising that only a re-elected Benjamin Netanyahu as prime minister could restore the country’s political stability. But it is also to note that what was deemed a personal triumph and breakout for Benjamin Netanyahu could very well trigger his downfall.  To repeat: why take such a risk?

About the Author
Donna Robinson Divine is the Morningstar Family Professor of Jewish Studies and Professor of Government emerita at Smith College, where she taught a variety of courses on Middle East politics. Able to draw on material in Hebrew, Arabic, and Turkish, her books include Women Living Change: Cross-Cultural Perspectives; Politics and Society in Ottoman Palestine: The Arab Struggle for Survival and Power, Postcolonial Theory and the Arab-Israeli Conflict, Exiled in the Homeland: Zionism and the Return to Mandate Palestine, and Word Crimes: Reclaiming The Language of the Israeli-Palestinian Conflict.
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