In the halls of justice.

The Supreme  Court of Justice

I am including here excerpts from an article that appeared in the Washington Post on Tuesday. In it the authors, Liav Orgad and Ariel Procaccia put forward an intriguing question-

Can Israel turn a constitutional crisis into a constitutional moment?

But, first of all something about the authors-

Liav Orgad is co-director of the Rubinstein Centre for Constitutional Challenges at Reichman University in Herzliya, Israel.

Ariel Procaccia is Gordon McKay professor of computer science at Harvard University.

“The simmering conflict between the Israeli government and Supreme Court is coming to a head. In January, the court overruled the ministerial appointment of Aryeh Deri, a party leader with a checkered legal history, on the grounds that the appointment is “extremely unreasonable.” In response, the governing coalition amended a law to abolish the court’s (seldom exercised) prerogative to apply its reasonableness clause. The ball is now back in the Supreme Court, where an unprecedented 15-judge panel will soon decide on petitions to invalidate the law.

So far, Prime Minister Benjamin Netanyahu has refused to commit to obeying the court should it rule against him. This is “uncharted territory,” he said during a CNN interview, “and I hope we don’t get to that.”

We use the term “constitutional crisis” with a touch of irony, as Israel doesn’t have a formal constitution. The Israeli Declaration of Independence, mandated the creation of a constitution. This task was entrusted to a constituent assembly, which belatedly convened on Feb. 14, 1949. But it took all of two days for the assembly to shake off its historic duty. The constitutional debate ended with a compromise: A process of incremental accumulation of separate “basic laws” would form a constitution. Netanyahu’s coalition is taking advantage of this system: Its legislation is dressed up as basic laws in an attempt to shield it from judicial review. Prefacing laws with “basic” has become the grown-up version of prefacing commands with “Simon says.”

The silver lining is that a constitutional crisis can also be a constitutional moment. Public polls indicate that a majority of Israelis support drafting a constitution based on the principles of the Israeli Declaration of Independence. And that same document might hold the key to the creation of a new constitution, in that it originally called for the establishment of a constituent assembly. Such an assembly should be convened today.

The anti-judicial overhaul demonstrations are now the longest and largest protest movement in Israeli history.

It started when Netanyahu returned to power late last year – leading the most right-wing and religious coalition ever to govern the country.

And though judicial reform was barely, if ever, mentioned during Netanyahu’s election campaign, it quickly became the main issue when Justice Minister Yariv Levin announced the far-reaching plans he had mapped out days after being sworn in.

The original proposals included reshaping how Supreme Court justices are selected, taking away some of its powers to nullify government actions, significantly limiting the authority of government legal advisers, and even giving the Knesset the power in certain cases to overturn Supreme Court rulings with a simple majority.

Netanyahu’s coalition said the changes were necessary to rebalance the branches of government, claiming that the Supreme Court had become insular and elitist, and held too much power over the democratically elected legislators. Opponents saw the reforms as a power grab for the ultra-Orthodox and settler movements and as a way to help Netanyahu as he faces an ongoing corruption case – charges he has vehemently denied.

Although aspects of the reforms have been dropped or softened since their initial rollout, the demonstrations have grown and morphed into a wider protest movement against the government, whose far-right ministers like Bezalel Smotrich and Itamar Ben Gvir have made controversial statements about Israeli society and about Palestinians that have raised concerns from international allies.

Other government ministers outdo the extremists every time they ascend the Knesset podium.

For example, Regional Cooperation Minister David (Dudi) Amsalem (Likud) criticised Israeli protesters abroad and Ashkenazi Israelis at home on Tuesday.

“You crossed every redline,” he said about the protesters during a Knesset plenum session. “You’re dragging the State of Israel into the abyss. You make all this mess and then tell us we’re not responsible. You destroy democracy, and we’re to blame?”

Amsalem also criticised Netanyahu’s comments to Elon Musk on Monday.

While explaining the judicial reform to Musk, Netanyahu said he thought the law to cancel the reasonableness clause was bad when it was proposed – an opinion he had not expressed before it was passed in the Knesset in July.

The law sought to “reject one imbalance by creating another imbalance,” Netanyahu said, adding that “it was a mistake.”

Margin note: Perhaps that was a gambit ahead of his meeting with President Biden in New York.

Back to our regional cooperation minister.

Amsalem said he disagreed and pledged that the coalition would continue to advance judicial reform.

This difference of opinion reflects what has been going on in the coalition over the last couple of weeks after a compromise outline was leaked to the media.

But while disagreeing with Netanyahu on this position, Amsalem defended the prime minister’s strong stance against Israelis protesting against him abroad.

Amsalem is one of a number of loud-mouthed government coalition members who malign members of the opposition, the anti- judicial reform protestors and anyone else who disagrees with them. 

At this juncture it’s opportune to mention the Biden-Netanyahu meeting in New York.

David Makovsky, a longtime Middle East watcher at the Washington Institute for Near East Policy, noted in a post on X, formerly known as Twitter, that the meeting was occurring "265 days after Netanyahu took office, the longest such gap since 1964."

"The Saudi deal's enormous potential has left Biden & Netanyahu little choice but to meet despite differences," he said.

By way of providing a fitting and hopeful conclusion, I can do no better than quote something posted by the Institute for National Security Studies (INSS).

“Let the year begin with its blessings" takes on a sobering meaning this year, as a plea stemming from the deep existential anxiety for the future of Israel that affects so many of us. Indeed, this past year has given rise to the fiercest internal disputes and the deepest rifts that Israeli society has ever known, to the point that the fabric of our precious Israeli identity seems to be unravelling. In the process, countless red lines have been crossed in public discourse as well as in deeds, and the consequent damages in every realm of life are ominously piling up. And yet, this is also proving to be one of Israel’s finest hours: hundreds of thousands of old and young, secular and religious, in the centre and in the periphery, rally every week around one slogan “DEMOCRACY!” This is probably one of the largest and most significant civil militarisations ever recorded, anywhere, actively involving about 20% of the relevant adult population. The extent of their determination and perseverance (for 37 consecutive weeks as of now) guarantees that we shall find a way out of this horrendous crisis. We have thus learned the hard way that each generation must assume anew the responsibility for preserving liberal democracy, and for protecting the priceless norms of togetherness, caring, and belonging, that make Israel such a wonderful if complex “shtetl” to live in and to the “day after” we will have to restore what has been badly damaged: the fabric of the IDF as the people's army, the trust in our institutions, the vibrancy of the economy, and the cohesion of our society.  And then we will have to reckon with the fundamental problems that we have neglected and suppressed for too long, which have led to today's upheaval: the socio-economic gaps, the tensions between the ultra-Orthodox and the secular as well as between Jews and Arabs, the constitutional and political regime, and yes, also the bleeding conflict with the Palestinians. At the start of this new year, we shall not succumb to despair - on the contrary, this is an extraordinary opportunity to turn over a new leaf and draw the roadmap for a better Israel, which we shall be able to be proud of for at least the next 75 years. Let me say it loud and clear: if each of us will assume responsibility and do his/her share to preserve Israel as it was meant to be, a Jewish and democratic state in the spirit of the Declaration of Independence, here in Israel as well as in every Jewish community, WE SHALL PREVAIL!

 

Beni                      

21^st of September, 2023.