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What Defenders of Judicial Reforms Will Never Tell You

In their zeal to keep our eye off the ball, defenders have scrupulously avoided telling us a few things they know can demolish their case.
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August 19, 2023
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Passionate defenders of Israel’s judicial overhaul, which has triggered eight months of unprecedented protests throughout the country, have developed an impressive array of claims and accusations to shift our attention away from the actual overhaul. They’ve thrown all kinds of stuff at us, such as:

The protests are not about the reforms.

It’s a revolt of the elites against the masses.

The leftist Supreme Court has hijacked democracy.

IDF opposition to the reforms is the real coup.

Opponents only want to topple the government.

The protests are a conspiracy funded from the outside.

These reforms are needed to bring back democracy.

And so on.

But in their zeal to keep our eye off the ball, defenders have scrupulously avoided telling us a few things they know can demolish their case.

For starters, they won’t tell you that the architect of the overhaul, Justice Minister Yariv Leviv, conceded in an April interview that a key piece of his legislation would enable his coalition to “exercise control over all three branches of government,” which he admitted is “unacceptable in a democratic country.”

Many people don’t realize that in Israel, the executive branch controls the legislative branch, which is like saying that in America, the White House controls Congress. It’s an inordinate amount of power in one place. The only check against legislative abuse, then, is the judiciary. Neuter it and, as Levin himself admitted, you exercise control over all three branches of government, which is unacceptable in a democratic country.

The fact that the judiciary needs to be reformed, preferably in a fair and bipartisan way, has nothing to do with the fact that the judiciary is the only institution in Israel that can prevent legislative abuse.

The second thing defenders won’t tell you is that the leader of the coalition, Prime Minister Benjamin Netanyahu, is a longtime believer in the need for a powerful independent court. They will never mention, for example, this Bibi quote from a 2012 address:

“I believe that a strong, independent court allows for the existence of all other institutions in a democracy. In places with no strong and independent court system, rights cannot be protected.”

Because Bibi was forced to promise the moon to extremist partners to get his old job back, not to mention to assist with his legal troubles, he’s been forced under this coalition to play down his belief in a strong judiciary. But the truth is the truth; it doesn’t care what time it is.

The third thing defenders are hiding is what could happen in the future if these reforms go through. Every time I’ve brought this up with a defender of the reforms, they’ve gone strangely quiet.

The reality is that any future coalition can use these reforms to do pretty much anything they want. Just as the current coalition is planning to implement far-right policies that benefit settlers and the ultra-Orthodox, a future coalition can mandate that everything can open on Shabbat, every Haredi must join the army, every illegal outpost must be dismantled, all funding for ultra-Orthodox yeshivot must be conditioned on teaching general studies, all non-Orthodox Jews must have equal rights to pray at the Kotel, and on and on.

And because the executive controls the legislature and the judiciary has been neutered, no institution will be able to stop the abuse. Get it? A weakened court that transfers so much power to the government is a disaster regardless of which party is in power.

Defenders know all this, but they must play it down, lest they lose support from their own base. They’re so eager to remake Israel in their extremist image they figure they’ll cross that creaky bridge when and if they get there. Maybe they’ve convinced themselves that they can keep their majority in perpetuity. Ideology breeds delusions.

Yet another thing defenders don’t want you to know is how uncompromising the Coalition has been. But don’t take my word for it; here are the words of Yedidia Stern, CEO of the Jewish People Policy Institute, who has been directly involved in trying to reach compromises on the reforms:

“In a joint effort, lawyer Raz Nizri and I proposed a solution to the reasonableness-standard dispute, which was adopted by the Histadrut, and accepted by important parts of the protest movement, and opposition Knesset members, but it was torpedoed by the coalition, which chose instead to enact a particularly extreme wing-clipping of the Supreme Court.”

Notice the running theme in what reform defenders are hiding from you: the value of an independent judiciary. If anything, they’ve gone in the opposite direction by portraying the judiciary as an elitist, out-of-control institution out to ram leftist ideas down the throats of the unsuspecting masses.

What defenders don’t want you to know is that 10 of the 15 justices were appointed under Prime Minister Netanyahu, four of them recently under the right-winger, Ayelet Shaked, who served as justice minister from 2015-19. Shaked introduced greater diversity by appointing to the High Court people like Yosef Elron, who is of Mizrahi origin and considered conservative. Other conservative justices who were appointed include David Mintz (who is Orthodox and lives in the West Bank settlement of Dolev), Yael Willner (who is also Orthodox) and Alex Stein.

“As minister of justice, I led a diversification of the [judicial] system in all the courts,” Shaked told The Times of Israel in April. “In the magistrates and district courts, we advanced Mizrahi and Druze judges, who we sought out with great care.”

None of this fits the narrative of rabid defenders who are out to malign the judiciary and the protest movement any way they can and shift our attention away from inconvenient facts.

One such inconvenient fact is that the Supreme Court is hardly the anti-religious institution that represents primarily the secular elite of Tel Aviv, as reform defenders like to claim.

In 2014, for example, the Court ruled in favor of the right of ultra-Orthodox Jews to compel Haifa’s municipal authority to build a mikveh, or ritual bath, which it had hitherto refused to build.

Supreme Court Justice Uzi Fogelman wrote in his decision, backed by Justices Esther Hayut and Neal Hendel, that immersion in a mikveh was “an inseparable part of her [a religious woman’s] religious ritual and the expression of her identity and customs,” and was “substantively related to the right to the free exercise of religion and religious practice.”

In 2007, the Court struck down a government decision to fortify only selected classrooms in 24 schools in the Gaza-border region to protect them from Hamas rocket fire. The government reasoned that older pupils could run to the protected rooms when they heard the rocket warning siren.

The High Court ruled that the government’s decision not to provide full protection to these schools “exceeds the boundaries of reasonableness” in light of the large number of children who were exposed to rocket fire and the fact that it was a severe and daily threat to their lives.

In the absence of a formal constitution, did the Supreme Court accumulate too much power over the years? Yes, which is why reasonable reforms are needed. But is the judiciary still the only institution that can prevent legislative abuse in Israel? Yes again, which is why neutering it for short-term partisan gain would be a democratic disaster.

Finally, perhaps the most crucial thing the coalition’s defenders have tried to suppress is the fact that the protest movement represents a wide cross section of Israeli society. By targeting a few protest leaders who are part of the Ashkenazi elite, they’re hoping we will ignore the hundreds of thousands of Israelis from all walks of life who have been marching every week for nearly eight months. They’d like us to believe that it’s all one big scam led by chosen elitists who are panicking at the prospect of losing their power; that all these Israelis who have been marching with the Israeli flag are freiers who don’t know any better.

Defenders have no choice but to make these claims. Any recognition of the legitimacy of the protests would undermine their case. They’re not in this to search for truth and compromise but to win. They’re even ignoring the latest polls, which confirm the backlash among a majority of Israelis.

As Yedidia Stern writes, “It is becoming increasingly clear that the coalition is determined to proceed with its reform package despite surveys showing that the Israeli majority – aka the Center, which includes at least a third of Likud voters – opposes further changes to the system without a broad consensus.”

The simple reality is this: Had the coalition acted in good faith back in January, instead of announcing an extremely aggressive and divisive constitutional overhaul of Israel’s judiciary, they would have launched a bipartisan committee with a mandate to come up with fair and reasonable reforms that would have had broad consensus.

Instead, driven by a gluttonous hunger for power and a zeal to remake Israel in their image, they triggered a civic earthquake that has torn the country apart on the year of its 75th anniversary. And, in cold-blooded fashion, they seem to have no problem keeping the earth trembling.

Defenders have every right to defend these actions. And we have every right not to fall for their subterfuge.

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