Israel’s Constitutional Catharsis
To ubiquitous intellectual bereavement, the present political crisis in Israel has demonstrated that neither the proponents nor the opponents of the intended fundamental changes in the standing of Israel’s Supreme Court also called Israel’s High Court of Justice, could get important matters into perspective. As a result, the opposition’s rapidly radicalized demands, as well as actions and the coalition government’s desire to control the raging political turmoil, have forced both sides to be stuck between their mutual political dissension and their emotion-laden pandemonium against the other combatants’ attempts to paralyze the state of Israel. Meanwhile, Israel’s friends and foes alike think Israel’s democracy is diminishing and being supplanted by a fanatically religious Zionist tyranny to the detriment of the secular majority. The identity of the Jewish state is in danger of being reduced once again to the conventionalized caricature of the mythological Jew with his or her alienation from the world in general and insatiable yearning for destructive pseudo-theories in particular.
Yet, nothing could be further from the truth than depicting the highest organ of the Israeli judiciary as the suffering victim and the Netanyahu-led coalition government as the antidemocratic villain of the proposed judicial reform. As it has been the case with all fundamental societal controversies throughout the complex history of mankind, the independent and secular judiciary of the State of Israel has a lengthy as well as politically turbulent record. Since its establishment in 1948, this judiciary has been viewed by the religious Zionist leaders as a one-sided secular political infringement on the absolute superiority of Jewish religious laws. To illustrate the depth of the opposition, it should suffice to point to the opinion of the then Chief Ashkenazi Rabbi Isaac Herzog, the grandfather of the current President with the same name, who defined the secular court system as a “catastrophic betrayal of the Jewish tradition.” This religious cum political controversy has poisoned the relationship between the secular and religious parties in the first Knesset, the unicameral Israeli Parliament. As a result, the State of Israel has never managed to create a written constitution. Following a relatively calm period between 1948 and the mid-1980s, the Supreme Court gradually eroded two procedural safeguards – a narrow definition of standing and justiciability.
To add insult to injury, the Supreme Court has also imposed a “reasonability” standard that guided the justices to coin another legal standard – “extreme unreasonability.” In this manner, the Supreme Court arrogated to itself the right to declare any legislation illegal that failed to meet its arbitrarily determined reasonableness standard. Then, in the early 1990s, under the leadership of Chief Justice Aharon Barak, the Supreme Court first expanded a set of human rights favoring LGBT equality in 1992, and in 1995 it established judicial review. These moves by the Supreme Court have deepened the divide between secularism and religiosity. Moreover, during the second term of Prime Minister Netanyahu from 2009 on, a slew of legislative actions by the Knesset triggered secular opposition, culminating in several Supreme Court decisions that ran counter to the political will of the majority in the Knesset. Finally, the competing ideas of the secular political revolution by the Supreme Court and the judicial counterrevolution by the coalition of ultra-orthodox Jews, religious settler community, and most legal professionals have come to a dangerous political catharsis after November 1, 2022, elections in which the Netanyahu-led Likud has formed a coalition government with the United Torah Judaism, Shas, Religious Zionist Party, Otzma Yehudit as well as Noam. Having gained 64 seats against 56 seats for the opposition in the 120 seats Knesset, the new government has introduced its judicial reform legislation.
Now, what are the preeminent provisions of the judicial reform bill? First, the “override clause” would allow the legislature to reverse the Supreme Court’s rulings against any legislation passed by a majority of the Knesset. Second, limits on the Supreme Court’s jurisdiction on some issues, including the right to petition the Court. Third, changing the composition of the judicial appointment committee will increase the number of government-appointed members. The objective is to curb an activist judiciary that has abandoned its responsibility to provide equal justice under the law and replaced it with the judiciary’s political desire to establish social justice. Thus, by transforming the judiciary into thought police, the governability of the State of Israel has become an issue of political life or death.
Opponents of the planned judicial reform have long agonized over the fate of democracy because of what they perceived to be an unrelenting assault on Israel’s secular democracy. Conversely, the proponents of judicial reform have stated that the judiciary has become an an elected enemy of the people’s elected representatives. Be that as it may, trust in the judiciary has unambiguously declined across all segments of Israeli society. The eternal lousy news is that one could win through politics but die by too much politicking.
Without a doubt, the heated controversy over judicial reform is real. Its opponents, as well as its proponents, try to maintain and even improve democracy in Israel. Yet, finger-pointing, and demagogic accusations by both sides are unseemly and even malicious. More significantly, a host of amateurish criticism by foreign governments is unhelpful. In particular, the Biden Administration’s adaptation of its weakest foreign policy ideas to the Middle East and Israel is counterproductive. The Democrat Party’s insane “modern progressiveness,” aka the combination of victimhood and double standards of fallacious hypocrisy, is not the solution. Israel’s democracy and people’s freedom can only be maintained and strengthened by its citizenry that, for seventy-five years, has built a thriving sovereign country by the force of their wisdom for seeing the forest and not just the trees.
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