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Gilead Sher

This drive toward absolute power must be stopped

Striking 'reasonableness' will enable any decision by any elected official, no matter how groundless, absurd or corrupt
Prime Minister Benjamin Netanyahu (right) chairs the weekly cabinet meeting in Jerusalem on July 9, 2023. (GIL COHEN-MAGEN / POOL / AFP)
Prime Minister Benjamin Netanyahu (right) chairs the weekly cabinet meeting in Jerusalem on July 9, 2023. (GIL COHEN-MAGEN / POOL / AFP)

The struggle for Israel’s democracy is about to enter a critical phase. Abandoning its flimsy pretense of seeking broad agreement, the government has resolved to quickly ram through the first piece of regime change: eliminating judicial oversight based on the ‘reasonableness standard.”

The 130-plus organizations opposing the systemic overhaul have warned that if the bill passes its first Knesset reading on Monday, they will launch a campaign of protests, interruptions to daily life and civil disobedience. In turn, coalition representatives are furiously pressuring the police and the Attorney General to subdue the protests, with many supporters openly calling to maim or even kill the protestors and violent attacks on protestors are on the rise.

It is a combustible moment, and it is vital for as many Israelis as possible – as well as for friends of Israel abroad – to understand what is truly at stake.

The government’s latest assault is a course correction away from the failed blitzkrieg of six months ago toward a more piecemeal strategy that is if anything even more dangerous. The government is gambling that the public can be lulled into complacency, and that people might accept the argument that allowing unelected judges to determine “reasonableness” is somehow unreasonable.

This sounds much less drastic than the seemingly shelved proposal to allow the Knesset to overturn court decisions. But make no mistake: this one-sentence law will wreak broad devastation to the most basic protection that the law is supposed to provide all citizens: to ensure that the government actually serves the public good, that its decisions are rational and responsible, not arbitrary or corrupt.

The “reasonableness standard” is often the only way to redress blatant injustices or corrupt administrative decisions of all types, from the smallest individual cases to events of fundamental national import. It is a foundational element of the legal system not only in Israel, but in many other “common law” countries, from England to the US, Canada, Australia, New Zealand, India, Singapore and beyond.

In practice, the courts invalidate executive acts for “extreme unreasonableness” very sparingly. But as an accepted part of the law, it instills a culture of governmental competence and deters corruption and self-dealing. Now the government wants to prevent any such review of any decision by any elected official, no matter how groundless, absurd or corrupt.

Even the most prominent critics of the Supreme Court’s expansion of the reasonableness doctrine propose allowing the court to trim its application in limited circumstances, such as policy decisions by the full Cabinet. But because ministers can assume authority for many matters usually decided by the professional echelon, this short amendment effectively puts most decisions by government bodies, from the Cabinet all the way down to the local authorities, beyond the reach of the law.

Unlimited power

The sheer scope of this abdication of responsibility is staggering. Every building permit, town plan, allocation of public funds, appointment of key legal advisors, even key decisions affecting free and fair elections will be untouchable. And the civil servants who interact with the public will quickly adapt to the new culture, or leave.

If the legal system is like a Roman arch, carefully erected to serve the public and protect its rights, then to erase the reasonableness standard is to remove the keystone from that arch. It is to declare open season for government corruption and lawlessness. What kind of government proposes such a law? What foreign company will invest in a country where that is the law of the land?

And therein lies the point: this deceptively-presented law precisely captures the government’s aims. It is not intended to help the public or improve the legal system. The real strategic aim of PM Netanyahu and each of his coalition partners is to dismantle all barriers to their unlimited power. Only thus can they achieve their uppermost objectives, which have very little actual public support — emerging unscathed from criminal proceedings, entrenching permanent privileges and exemptions from the duties of citizenship, or changing the regime from a liberal democracy to a Messianic, halakhic theocracy.

Ultimately, their entire overhaul plan is both a means to those ends and a smokescreen for them. The nearly 190 proposed laws that roll back democratic freedoms and institutions in lockstep with the authoritarian transition playbook clearly show the direction in which they are taking the country.

Yitzhak Shamir once said: “For Netanyahu, there is nothing more important than his own personal interest – not even the Land of Israel.” Netanyahu has shown that he is completely willing to take the country to the brink of economic ruin and beyond; to drastically weaken our national resilience and deterrence profile; and to strain our crucial alliance with the US and other allies, believing in his ability to outmaneuver and outlast everyone.

The emptiness of all those solemn assurances to President Biden, to the banks and credit rating agencies, has been laid bare for all to see. Does he really believe that they will trust his word again?

A house divided

Most unforgivably, he has cynically ignited the deepest tensions and hostilities in Israeli society – elites against the “underclass,” right versus left, Sephardi against Ashkenazi.

There are legitimate reforms demanded by critics of the Supreme Court, and such reforms can be accomplished without destroying judicial independence and damaging, perhaps irreparably, the basic social cohesion so crucial to Israel’s resilience in an unforgiving region.

The vast majority of Israelis want to find a way to live together in a stable regime that protects their liberties as well as the state’s Jewish character. They know in their gut and from our history that “a house divided cannot stand.”

When conditions allow, Israel should convene a constitutional council, under Presidential or other auspices, without politicians but rather with legal experts, social and religious leaders and scholars reflecting the full political and social spectrum. The unifying commitment should be to the values expressed in Israel’s excellent 1948 Declaration of Independence. The council would be given one year to formulate a skeleton constitution that sets out a compact and stable set of arrangements for the branches of government, principles for protecting individual rights, and a framework for legislating other constitutional norms moving forward.

These are fateful days. For the Israeli miracle to survive, the Netanyahu government’s drive toward absolute power must be halted, by all legitimate and nonviolent means. Once laws are passed, it will be too late.

The coming months will likely be difficult, but I believe the solid majority of Israelis, who are determined to preserve a vibrant Jewish and liberal democratic country, will prevail. Now is the time to raise their voices loud and clear, and fear no evil.

About the Author
Gilead Sher is a former Chief of Staff and Policy Coordinator to Israeli Prime Minister Ehud Barak and a senior peace negotiator. Sher is a Fellow in Middle East Peace and Security at Rice University’s Baker Institute. He co-founded the Central Headquarters for the 2023 pro-democracy struggle.