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Rothman: Supreme Court decision a ‘shame,’ but not time to re-legislate

"The court did not rise to the occasion, but that does not mean that we should be irresponsible," says MK Simcha Rothman, one of the reform effort's key architects.

MK Simcha Rothman during the hearing at the Supreme Court in Jerusalem on the "reasonableness law," Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.
MK Simcha Rothman during the hearing at the Supreme Court in Jerusalem on the "reasonableness law," Sept. 12, 2023. Photo by Yonatan Sindel/Flash90.

In an unprecedented and controversial decision, Israel’s Supreme Court on Monday struck down the so-called “reasonableness law,” an amendment to a semi-constitutional Basic Law passed as part of Prime Minister Benjamin Netanyahu’s now-shelved judicial reforms.

The Knesset passed the law in July as an amendment to Basic Law: The Judiciary, in what proponents saw as a long overdue measure to restrain judicial activism and bring Israel’s court system in line with those of other parliamentary democracies.

The amendment prevented the courts from using “reasonability” as a pretext to overturn Knesset legislation. Reasonability essentially means whether the judges consider a given law “reasonable”—a standard even opponents of the law agree is vague.

The Israeli Supreme Court had never before struck down a Basic Law, a move many view as akin to the American Supreme Court canceling an amendment to the United States Constitution.

Knesset member Simcha Rothman, who catapulted into the national consciousness last year as one of the key architects of the reform program, told JNS that he intends to re-legislate the law, but that now is not the time.

Rothman, a member of the Religious Zionist Party and chair of the Knesset’s Constitution, Law and Justice Committee, also discussed the ongoing war against Hamas in the interview.

Q: Do you believe that the court ruling is an example of the judicial overreach the reform plan is trying to address? 

A: It’s clear to everyone that it’s the case. I think even those who support the ruling will tell you that it’s a shame that this decision, which is divisive, came during wartime. The court could have waited for other opportunities. The court did not rise to the occasion, but that does not mean that we should be irresponsible. The Knesset and the government should wait until after the war to take action. 

Q: Do you plan to re-legislate the law after the war? 

A: It’s understood that we will re-legislate. There was an understanding of the need to reform the judicial system before the war and even more so now. Especially after Oct. 7, there is wide acceptance. There is a need for a change, it was always the case and it’s even more undebatable now.

Q: Former Public Diplomacy Minister Galit Distel Atbaryan apologized this week, saying that she had “sinned” for her role in the reform plan. What do you have to say to her?

A: Atbaryan said she sinned in the way she conducted her speeches and spoke about issues. She did not say anything about the judicial reform or that backing it was a mistake. I think that ideological differences are a given in democratic society. We all must learn to conduct the political and ideological debate speaking about the issues and not the people. That’s the way to conduct any political and ideological debate. It was true before Oct. 7, it’s especially relevant after.

We, in the Knesset, the coalition and the opposition, when dealing with legislation try to find some middle ground. It is not the time for divisive decisions, not in the Knesset, not in the government, and not in the court.

Q: Switching gears, what is your message to the soldiers in Gaza battling Hamas?

A: My message is that the State of Israel, including the coalition, the opposition, the right, the left, the religious and secular, is 100% supportive of the soldiers’ ongoing war effort to destroy Hamas and make sure this terrorist organization has zero impact in Gaza. Thanks to them, the Gaza Strip will be demilitarized and the threat to the Israeli public will be abolished. 

We also support, first and foremost, their effort to bring back the kidnapped from Gaza. The military pressure that was applied from the beginning until now has proven itself to be the only viable way to bring any kind of solution, either through freeing the hostages directly or by Hamas giving them back. 

Hamas understands that holding kidnapped Israelis is not an asset, it’s a burden. It’s an important message to Hamas and to all our enemies: If they kidnap Israelis, nothing good will come out of it for them. They will gain nothing from it, they will only lose. 

Q: How do you think the government has this far handled the war effort?

A: We are part of this government. The Religious Zionist Party is 100% behind the war effort. There are certain issues of debate, especially surrounding the decision to allow fuel into the Gaza Strip, which we object to. At large, everyone is unified behind the War Cabinet and the way that the war is being handled. 

Q: Do you think anything could be improved or changed?

A: In my opinion, debating the war effort in the media has no positive effect. The positions were heard in the Cabinet. The debate there is professional and ideological. After the decisions are made, again despite the differences, we support the government and the IDF. 

Q: On Dec. 31, you posted a tweet in which you tagged U.S. President Joe Biden, saying “it is immoral to demand that the citizens of Israel pay for their own slay.” Do you think the U.S. plan to “revitalize” the P.A. to rule post-Hamas Gaza is realistic?

A: I don’t think it’s realistic. The vast majority of the public in Israel understands that the P.A. is not a partner for peace. We must be careful not to switch one terrorist organization for another. In my tweet, I retweeted the P.A. announcing that they would pay salaries to the terrorists who on Oct. 7 infiltrated Israel, raped, murdered and abducted Israeli citizens, including children and women. It is fully understood by anyone who follows what is happening in the P.A. that if you teach your children to murder Jews and if you pay murderers for the murder of Jews, you cannot be a part of any solution. 

Q: What is your vision for the “day after” the war?

A: First, we must make sure that Gaza is demilitarized and that the IDF is in security control of the entire Gaza Strip. After Oct. 7, anyone who thinks that some other forces will guard Israeli security, and Israeli citizens, did not learn the right lesson from Oct. 7.

The population management should be determined in the future. Now is not the time. We are having this interview after yet another attack on Tel Aviv. The day after is still far away in the future. We must all be very focused on getting to that day by eliminating Hamas and making sure that citizens in areas surrounding the Gaza Strip and all over Israel are safe. 

Q: Lately, it seems like some politicians have started campaigning. Former Prime Minister Naftali Bennett has been quite vocal. Economy Minister Nir Barkat has been critical of the government. Do you think there will be an election after the war? And what is your impression of the politicking?

A: What Naftali Bennett has done in this aspect is very irresponsible. He published information that apparently shouldn’t have been published. 

[ED—In an opinion piece published in the Wall Street Journal, Bennett wrote “I directed Israel’s security forces to make Tehran pay for its decision to sponsor terror. Enough impunity. After Iran launched two failed UAV attacks on Israel in February 2022, Israel destroyed a UAV base on Iranian soil”.] 

Getting the war to benefit you politically is something immoral. That is not the way to behave. We are now all united, we need to focus less on our differences. That is the reason my party, the Religious Zionist Party, wished to postpone the municipal elections. Wartime is not the time to emphasize the differences between us, which is what elections are all about. This is the time for unity, and the Israeli public does not appreciate Naftali Bennett’s effort to try to gain political benefit from the war. I don’t think it works so well for him.

Q: The war could last a long time according to political and military leaders. Do you nonetheless remain hopeful? What is your message to the Jewish people?

A: First, I am always hopeful and I know that the people of Israel and the Jewish people all around the world are extremely united in the shared effort to win this war. We don’t have any other option so we are all behind it. We need to remember this unity not only in times of war but throughout the year.

Differences in opinion are a natural habit of the Jewish people, but we must remember that our enemies do not see the differences between us. They do not see differences between secular and religious, between Jews inside of Israel and outside of Israel, or between Jews who live behind the Green Line [pre-1967 border] and those who live within the Green Line. 

Our enemies don’t see any differences and we shouldn’t either. We should all be united in the ongoing war for our existence in the land of Israel to make sure that we will win this war and that our enemies will be afraid to start another. 

Q: When the war is over, what is the most pressing item on your legislative agenda? is it continuing with the reforms?

A: When the war is over, we will have another interview. 

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