Will miracles never cease? Finally there’s political unity in Israel. The first bill in Prime Minister Netanyahu’s judicial overhaul package — that which would curb the Supreme Court’s ability to examine a law based on its reasonableness — passed unanimously.
Of course, nothing in Israeli politics is unanimous, or at least not since February 16, 1949, when the Transition Law passed 77 to 0 with 11 absentees, and established Israel’s Knesset. This time all the members of the opposition refused to vote on the reasonableness bill, leading to a 64 to 0 victory in the 120-member chamber, which almost uniquely among parliaments does not require any quorum to do business.
Israel is like a person who wears her shirt inside out. It works until you call attention to it or try to change. Then the glaring discrepancies become obvious but you can’t make heads or tails. From the outside, it is an uphill battle to make sense of it all.
Israel’s Supreme Court just announced it will hear a challenge to the new law in September. The court is likely to punt. In the game of chicken that everyone is expecting with trepidation, the court will probably demur anticlimactically to avoid a direct challenge to the Knesset’s authority.
Give it time, however, and the court will work around. The court could isolate components of the all-purpose reasonableness standard— which is an upgrade of its much restrained namesake of English law —, devise a new term and pretend the distinction confers a difference. Time-honored ulra vires would be an obvious choice for a comeback. Or the court may widen the scope of “proportionality,” another tool in its quiver with no less a dubious origin and haphazard application, to check government’s excess.
Indeed, criticism of the court’s nebulous standard is not without merit. But the criticism also misses the mark, given that the court has been forced into the thankless role of keeping the Israeli system rolling.
For a cool-headed examination of recent developments, let’s get the basics. The Israeli Supreme Court’s reputation as a bastion of liberalism is long past any semblance of accuracy. The court’s reputation as a strong activist check on the Knesset is a leftover from the leadership of Aharon Barak, who, appointed as justice in 1978, served as its president from 1995 until his retirement in 2006, and was the first chief justice to have studied law in Israel (his predecessors were educated in London, Chicago and Lviv; all his successors to date graduated from Israeli universities). Facing no real prospects of a proper constitution for Israel, Barak opted for a workaround. He elevated the status of Israel’s Basic Laws, signaling out the two of 1992 – the Human Dignity and Liberty and Freedom of Occupation – as license for judicial review of Knesset legislation, thus heralding the self-styled constitutional revolution that made the court into the top dog, whose impressive bark resonated nationally and internationally. Against the backdrop of diminishing standards of governance and growing public expectations, Barak also widened the scope and ambition of the court’s administrative scrutiny of the executive and the bureaucracy. However, a careful analysis would reveal that the court was not always justice in its bites, and in the years since Barak’s retirement, has yelped nary a whisper.
All this is to say the revision of the reasonableness standard is less consequential than its opponents suggest. But it is not without cost.
First, the new law will have a chilling effect on the court. Over time, a reticent court will become more so.
Second, it weakens the Israeli system. Governments from right and left have delegated uncomfortable but necessary decision-making to the court, the only branch of the Israeli government under obligation to make decisions. Unlike its American counterpart, the Israeli Supreme Court doesn’t choose which cases to hear. Consequently its docket dwarfs the American court’s. Overburdened, the Israeli Supreme Court issues rulings that don’t always translate into socially or administratively understood standards. The court inevitably is forced into clarifying its intentions through subsequent, insanely particular cases meant to nudge the executive into action.
In several cases the court has forced the government into action by ruling executive inaction “unreasonable,” a practice now to be curtailed by explicitly banning the court from scrutinizing a failure to exercise government authority.
Procrastination by the Knesset is bad enough, but that of the executive has become a policy tool, and the revocation of the reasonableness standard will not help. In short, the law will not end Israeli democracy but it undermines the functioning of the Israeli state machine, a good enough reason for the masses to storm the streets in protest.
Third, the current crisis uncomfortably pits the public good against Netanyahu’s personal fortunes. Unlike recent reforms in Hungary or Turkey, Israel’s is not the creation of a power hungry leader but born of an unfortunate coupling: The ambition of inexperienced newcomers in the fringes of the ruling coalition, intoxicated by glizzy ministerial titles and frustrated with their little substance; and the desperation of a veteran prime minister – whose long career has hardly been marked by reformist zeal – facing corruption charges. Netanyahu is not fighting for his political legacy but for his personal liberty. He knows well that the lower, district courts are not timid and have sent a former prime minister and a former president to serve time in prison. Netanyahu must stay in power to stay out of prison.
Finally, the law only adds to the perennial confusion about legitimacy and authority, exposing Israel’s lack of constitutional foundations. Israel does not have an official constitution, but Israelis don’t realize how abnormal it is. Israelis are brought up with the soothing but wrong belief that their country should be grouped with the United Kingdom and New Zealand, the other two countries without a formal constitution. But the U.K. takes great pride in its constitution, which was deeply admired by James Madison and Alexander Hamilton, and was the model for the American framers in designing a republican version.
Some good may yet come of the mess. Listen carefully, you will hear voices dare to suggest the time is ripe to end Israel’s Articles of Confederation trial, and graduate to a constitution to insure domestic tranquility. The general tone, however, is still dominated by the deafening fears that a constitution for generations should be decided in the current political climate.
Should Israeli logic prevail, the moment’s heightened constitutional awareness will soon die out. Israelis may not yet be ready to be disabused of a naive nostalgia for a distant supposedly more virtuous past, and the romantic hope that a messianic future may harbor a more hospitable environment conducive to a decision. In a present ruled by indecision, distraught Israelis could at most hope for an informal detente, not an official compact, and the system will continue to trudge along, leaving all parties frustrated, and then some.
Israel is too used to wearing its shirt inside out.
Yoav Sivan is a New York-based writer.