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In this battle, we must not retreat

What is at stake is not just judicial reform; after 100 years a large part of the people has awoken to claim its share of the leadership—and not just based on ethnic grievances.

Israelis take to the streets of Tel Aviv during a general strike against the government's proposed judicial reforms, Feb. 13, 2023. Credit: Tomer Neuberg/FLASH90.
Israelis take to the streets of Tel Aviv during a general strike against the government's proposed judicial reforms, Feb. 13, 2023. Credit: Tomer Neuberg/FLASH90.
Dror Eydar. Source: LinkedIn.
Dror Eydar
Dror Eydar is Israel's ambassador to Italy

There is no way back. The metaphorical gun has been put on the table—senior opposition members have made insane and irresponsible threats; we cannot fold.

There is, however, room for dialogue and compromise, and we must bring on board members of the opposition who support restoring the balance between the branches of power and reining in the Supreme Court. But we cannot pull back. If the coalition gives up this historic opportunity, there will be no way back for the masses who voted it into power.

We know that the judicial reform is not about “regime change” as the opposition charges, and that it will strengthen democracy, not harm it. The opposition is trying to cause chaos in order to bring down the government. We cannot let this distract us from our goal. Take a deep breath, comrades: We have a homogenous coalition that can last out its full four-year term and more. We need to turn down the heat in other government offices so we can concentrate on the present campaign, the most important front of the past century in the battle of opinion.

The extremist rhetoric coming from some parts of the coalition is a sign that it is not sure of itself—it is letting off a hundred years of steam. This perhaps nourishes the desire for revenge after many long years of oppression, but does not show leadership. There are many on the other side who fear that our democratic regime is about to change. We have to ease their fears, to calmly tell the truth and magnanimously offer a compromise. A regime that is sure of itself does not threaten its citizens—even when they demonstrate against it—and it certainly doesn’t harm symbols of power. Respect for institutions does not contradict criticism of them, but it does show the public that the situation is under control.

What is at stake is an issue for which we returned to the chronicles of history and from which we derived the strength to return to the Land of Israel: The question of identity. Who are we? The relationship between Israeli and Jewish, the tension between our right to live in our land and the rights of minorities, how to deal with our enemies, the conflict between our allegiance to this land and the need to compromise over it—and many other issues.

Concepts such as “First Israel” and “Second Israel” are being thrown about. But I believe that these terms, as used by Israeli journalist Avishay Ben-Haim, are insufficient and harm our historic battle. I used such concepts in my articles many years before Ben-Haim; they were one of the socio-historical conclusions I drew from my doctoral thesis. But they were not directed at an intra-ethnic Marxist class war. In my view, we are talking about a chronological issue: Who came here first when the state was established, and who arrived later after all the good spots were taken.

The socialist avant-garde that came to the Land of Israel at the start of the 20th century after the failed revolution in Russia were revolutionary pioneers who saw themselves as representing the future, and from their perspective, the Old Yishuv and the First Aliyah, comprising mostly observant and traditional Jews, represented the past.

In 1931, the 17th Zionist Congress took place in Basel, Switzerland. The Revisionist movement led by Ze’ev Jabotinsky had become the second most important Zionist movement, and competed with the Labor movement (Mapai) led by David Ben-Gurion. Jabotinsky demanded that the Congress declare that the goal of Zionism was establishing a Jewish state on both banks of the Jordan River. The other parties refused, and Jabotinsky responded by declaring, “This is not a Zionist Congress” and tearing up his membership card. The Revisionists walked out of the World Zionist Organization and left the stage to Ben-Gurion and Mapai, who within just a few years took over the leadership positions and the institutions of the state-to-be.

When the state was established, Mapai and its sister movements were the first to the post in every field: In politics, government companies, the army, academia, the media and the judicial system. Likud and other movements that had played second fiddle only came to power in 1977, after leadership positions not subject to vote had long been filled. That was “Second Israel.” Few people understood why Menachem Begin, in his victory speech after the 1977 elections, spoke about 46 years (and not 29 years, the time that had elapsed since the founding of the state): He remembered the 17th Congress.

Thus, while the ethnic-class struggle is part of the issue, it is absolutely not the main issue. Prime Minister Benjamin Netanyahu’s excellent English is paradoxically proof that he belongs to Second Israel, as, in the state ruled by Mapai, his late father Benzion—a brilliant historian with revolutionary theses who was considered Jabotinsky’s intellectual successor—was cast into the political wilderness. The chair was taken, and he was forced into exile at an American university.

Describing the 100-year battle from an ethnic-class perspective falls wide of the mark and perpetuates the wretchedness of Second Israel at a time when things have moved forward. In order to rule we need to construct a leadership consciousness; namely, to build a leading elite in all fields. In other words, less of a “sweet message” (as Ben Haim defines the message of “Second Israel”) and more of a “confident message” that provides security and confidence to the public and is convinced in its ability to lead the history of the Jewish People in its country at the present time.

The social group in Israel that came second and assumed the leadership in 1977 did very little to change the situation in unelected centers of power. It was content with the illusion that with the elections it had won power, and with the knowledge that it was growing demographically. Nothing was done to change the situation in academia, the media and think tanks. It is only in recent years that the trend has begun to change. In any event, after 1977 the primary tool employed by First Israel to determine the rules of the game was no longer the Knesset. The arena switched from the legislative and executive branches to the judicial branch.

In the 1980s, the number of petitions filed against the government to the Supreme Court—sitting as the High Court of Justice—skyrocketed. When Aharon Barak became president of the Supreme Court and the Knesset legislated the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, the bell was rung for “the constitutional revolution,” as Barak himself described it. Its main message was: You can play pretend in the Knesset, but it is the Supreme Court that will decide whether laws are legitimate, whether government decisions are valid and whether Israeli Defense Forces combat and security doctrine are proportional.

The judicial appointments committee made sure to only appoint judges who agreed with the constitutional revolution, and by doing so perpetuated the system. Even a legal prodigy such as professor Ruth Gavison couldn’t get a seat on the Supreme Court, because she had criticized Barak’s judicial activism. The “reasonableness standard” was the final straw, because after all, the opinion of the Supreme Court justices outweighs the experience and considerations of those whom the public appointed to carry out the policies they support. Those were the rules of the game—until today.

That is why this is a decisive campaign. That is why there are protests on the streets and that is why in the media there is almost wall-to-wall opposition to change. We are witnessing in front of our very eyes a historic possibility to change the rules—and that strikes fear into both sides. After a hundred years, our side has awoken and is demanding its share of the leadership pie; not crumbs and not having to ask permission from the honorable justices, but a restoration of the proper balance between the branches of power. For the first time, the judicial system will also be subject to audit and restraint. For example, the court will not be able to debate basic laws, which to its understanding are the foundation of a constitution.

Dialogue and compromise, yes—but we must not miss our opportunity. In this historic struggle, one thing must be clear: We will not return to the status quo ante.

Dror Eydar is Israel’s ambassador to Italy.

Originally published by Israel Hayom.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.

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