A guide to the perplexed

Israel’s judicial reform saga explained

With talks now underway to find consensus on judicial reform, tensions have subsided somewhat - at least temporarily.

For three months now, the government’s opponents have chanted “democracy, democracy, democracy” ad infinitum. They see the proposed reform as the beginning of the end, the start of Israel’s descent towards becoming the political twin of post-liberal Eastern European nations Hungary and Poland. Even Islamist-ruled Turkey is presented as the type of destination to where the Jewish state is headed.

For the protesters, the High Court of Justice is the bastion of our democracy. In Israel’s unicameral parliamentary system, a government’s survival depends upon its ability to command a majority in the Knesset. With the executive branch’s dominance over the legislature, the independent judiciary is viewed as the only national institution capable of applying real checks and balances.

Thus, it is believed that any move to limit the court’s jurisdiction, or to give the coalition a majority stake in the appointment of justices, fatally undermines democracy.

For its part, the government champions representative democracy. It maintains that over the years the High Court has assumed unchallengeable powers that curtail the authority of the people’s representatives, and calls for re-tweaking the relationship between judiciary, legislature, and executive.

Tensions between the different branches of government exist in all democracies. For the reform’s advocates, Israel’s ultra-activist judiciary, epitomized by former chief justice Aaron Barak’s contention that all acts of the Knesset and the government can be subject to judicial review, has created an imbalanced system in which the Court reigns supreme over the other branches.

The coalition contends that its goal to roll back Barak’s self-declared “constitutional revolution” was known to the voters when they went to the polls in the 1 November 2022 elections, and that a mandate was given to pursue such a

policy. In a democracy, elections have consequences.

Is it only about the court?

The protesters are sincerely worried about the future of Israel. They see the recently reelected Benjamin Netanyahu as a flawed leader tainted by corruption, who should have departed the political scene years ago. Their view of his coalition partners is even harsher: The ultra-Orthodox are perceived as a reactionary patriarchy led in part by Arye Deri with his multiple criminal convictions, while ministers Bezalel Smotrich and Itamar Ben-Gvir are regarded as dangerous right-wing extremists.

Despite the groundbreaking election of an openly gay Likudnik as Knesset speaker, the protesters remain anxious about chauvinists and homophobes driving policy.

The demonstrators’ slogan

“defend the principles of the declaration of independence” expresses a yearning for a different Israel, one founded by liberals and social democrats. Driving the protests is a genuine anxiety that their beloved Israel will be no more.

The mainstream protesters are anything but anti-establishment. On the contrary, they proclaim their impeccable Zionist credentials: They are warriors who have fought in Israel’s wars, the creators of Israel’s hi-tech revolution, and the nation’s leading cultural luminaries.

Always marching with ubiquitous Israeli flags, they compare their own contribution to the State to that of the government’s backers, who are readily depicted as draft-evaders and welfare recipients.

Clearly, those who have played such an important role in the defense of Israel, and in creating its contemporary economic prowess,

deserve to be listened to.

But when supporters of the coalition hear the protesters, they discern an elitist narrative of entitlement. The demonstrators overwhelmingly voted for parties that now sit on the Knesset’s opposition benches. Yet, after losing at the polls, they seemingly seek to retain sway through the court, which – like an Israeli House of Lords – limits the authority of the elected leadership.

Ties with the United States

The Biden administration has reservations, reminding us that the Israel-US alliance is based on shared values. The protesters argue that if Israel ceases to be a liberal democracy, the relationship with our most important ally will suffer.

The demonstrators declare their belief in Israel’s founding principles, but perhaps overlooked is that

during this country’s first decadeand-a-half, Washington kept the Jewish state at arm’s length, fearing an overtly pro-Israel stance would push the Arabs into the Soviet side of the Cold War. During those early years, America’s closest Middle East friends included Imperial Iran and semi-feudal Saudi Arabia.

This week, Biden expressed concerns about the reform and said there are no plans for Netanyahu to visit the White House. Of course, the president was just in Warsaw embracing the very non-liberal Polish leadership – the strategic imperative of confronting Russia’s aggression trumping all other concerns.

Self-fulfilling prophecies

The opponents predict calamitous consequences. Not only will Israel cease to be a democracy, but investors will pull out of a country where the rule of law is no longer sacrosanct, imperiling Israel’s continued prosperity. Such arguments carry extra weight when they are advanced by noted economists and successful hi-tech entrepreneurs, some of whom assert that smart money is already unsure about Israel.

Proponents of the reform counter that despite this negative hype, there has been no investor exodus – the relatively stable dollar-shekel exchange rate attesting to that.

Nonetheless, economics is always a matter of psychology. And if expectations that the economy will tank are pervasive, it can become a self-fulfilling prophecy.

With all the differences, when military reservists claim they will fight the reform by no longer volunteering for duty, it is immaterial whether their concerns are valid or not.

As civilians, reservists have the right to hold any political perspective they choose. As soldiers, they cannot impose their views on the democratically elected government. Leveraging reserve duty as a tool of protest is opening a pandora’s box with ramifications on all sides of the public debate.

In victory, magnanimity

The protesters allege that the reform stems from Netanyahu’s indictment, which purportedly ignited his anti-judicial agenda. Yet accusations of underlying motivations can be placed on both sides, as the judiciary has a clear institutional interest in preserving its own considerable powers.

The voters knew of Netanyahu’s ongoing trial, but nonetheless elected him prime minister - an impressive political win that gave him the parliamentary majority to push through the reform.

But victory demands prudence. As Netanyahu knows, Winston Churchill counseled: “In victory, magnanimity.”

On Monday, Netanyahu agreed to defer legislation to take “a timeout for dialogue” in order “to achieve the broadest possible consensus.”

The protesters scoff - for them, his words have no credibility.

The prime minister now has the opportunity to prove them wrong.