Israel is suffering today. Its civil discourse is broken and harsh. At the same time, terror is spiking. During the general strike against the current government’s judicial reform plan on Monday, accompanied by a march on the Knesset, two terrorist attacks were added to the five that have left 10 people dead in the past two weeks. On a packed bus, a 13-year-old boy began to stab innocent civilians. A civilian security guard reacting to the attack accidentally shot and killed a Border Police officer. Then, a car-ramming took place at Tapuah Junction.
This is a state of emergency. The government has attempted to restore unity by accepting the exhortation from Israeli President Isaac Herzog to declare a truce and hold a meeting between supporters and opponents of judicial reform. A letter to opposition leader Yair Lapid and former Defense Minister Benny Gantz saying, “The time has come. Let’s not let the extremists win. We have no country but this one” has yet to be answered.
It feels as if Israel is now a wrestling ring, a contest between violent condemnations from each side, with accusations ranging from “fascist” to “traitor.” The tension is unbearable, with protesters shouting “democracy!” as if they lived in a country where demonstrations are forbidden, rather than covered by sympathetic television reporters.
President Herzog has taken on the role of peacemaker, giving an address to the nation that was the speech of his life. His face pale, he begged the nation “from the bottom of my heart and with a cry” to end the dissension. He reminded the country of the tears of the bereaved families he had visited, including of the two brothers, aged six and eight, who were murdered last Friday. He called on the country “not to fall into the abyss, too stop the incendiary fire of polarization before it consumes us.”
Using very careful words, he said, “The totality of the parts of the reform in its current form raises deep concerns about their potential negative impact on the democratic foundations of the State of Israel.” Reform is needed, he said, as even many on the left agree, but the reforms are moving too fast and correct procedures need to be followed.
Thus, Herzog presented a five-point plan. It would anchor judicial power in a written constitution, which Israel does not currently have, rather than the opinion of the Supreme Court, and involves changes to the system of appointing judges and delineating precise limits on their authority. All of this, he said, must be discussed face to face.
In truth, however, the opposition’s outrage at the new reforms is about the nature of the current government and the left’s defeat in the last elections, not the nature of the reforms themselves. As the president said, everyone knows major changes to the judicial system are necessary.
Why is this the case? Because the judiciary was already reformed back in the 1990s, entirely by fiat. Former Chief Justice of the Supreme Court Aharon Barak accorded to himself and the Court the power to strike down laws enacted by the Knesset more or less with impunity.
This is problematic because of Israel’s aforementioned lack of a written constitution, which in other countries is an essential check on a high court’s power. In Italy, only laws contrary to the constitution can be overturned. In the U.K., Canada and many other democracies, striking down a law passed by the legislature is extremely difficult.
Moreover, Israel’s Supreme Court can more or less choose its own members. The Judicial Selection Committee has nine members, including three current Supreme court justices, two Knesset members, two cabinet ministers and two representatives of the Israel Bar Association. Because a majority of seven votes is required for any appointment, the justices have de facto veto power over any nominee, ensuring that their ideological and political beliefs are perpetuated.
This is a unique system. No other country allows the judiciary to choose its own members without the approval of the legislature or another branch of government. The proposed reform would place 11 members on the Committee, with three justices, seven MKs from the majority and one from the opposition.
In addition, if a law is struck down by the Supreme Court, the Knesset can reconsider it and then, if it chooses, override the Court by majority vote.
One can approve or disapprove of these reforms, but it is clear that the charge of “fascism” is insupportable. Moreover, Prime Minister Benjamin Netanyahu shows no signs of creeping authoritarianism. Everyone, for or against, is expressing their views undisturbed, whether in the streets, on the radio and television or in the Knesset. Netanyahu has not oppressed them before and is not doing so now.
Why, then, are some opponents of the government all but outright calling for violence? Tel Aviv Mayor Ron Huldai, for example, said, “States can turn from a democracy into a dictatorship” and “only become democratic again with bloodshed.” Former Prime Minister Ehud Olmert has called for “war, not talk.”
Such extremist attacks can only bring joy to the hearts of Israel’s enemies, and their inevitable consequence is the delegitimization of the Jewish state, whose last elections brought those advocating judicial reform to power. This begs the question: Do those accusing Israel of fascism understand that they are handing a sword to our foes? Or don’t they care?
Fiamma Nirenstein was a member of the Italian Parliament (2008-13), where she served as vice president of the Committee on Foreign Affairs in the Chamber of Deputies. She served in the Council of Europe in Strasbourg, and established and chaired the Committee for the Inquiry into Anti-Semitism. A founding member of the international Friends of Israel Initiative, she has written 13 books, including Israel Is Us (2009). Currently, she is a fellow at the Jerusalem Center for Public Affairs and is the author of Jewish Lives Matter.
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