(February 28, 2023, JNS Wire) After the Knesset passed the first reading of a controversial bill to overhaul Israel’s legal system last week, the country is on the brink of virtually eradicating its checks and balances, and potentially even spurring a clash with the American Jewish community, said Dr. Yair Sagy, a legal scholar of the University of Haifa.
An expert on legal history and public law, Sagy explained why these reforms are controversial from a political, diplomatic and legal perspective. As a member of the Israeli Law Professors Forum for Democracy, Sagy and his peers at the forum have advocated against such sweeping changes.
Sagy asserts that he has never witnessed such a “brutal” attempt to subvert Israel’s democracy. This comes from a Golieb Fellow in legal history at New York University; a research fellow at Harvard Law School; and an academic visitor at the Faculty of Law at the University of Oxford and the Institute of Advanced Legal Studies at the University of London.
Q: The judicial reform bill went to a vote and passed on Monday. What exactly is at stake here from a legal perspective?
A: Israel’s system of checks and balances has never really been a proper one: It’s always been confined to two branches of government since the government controls the parliament. So once you control the Knesset, you control the government. The only real check on the government then is the Supreme Court and the judiciary. Most of these new initiatives are destined to substantially weaken the standing of courts, undermine their independence, limit their purview of review and render judicial review of legislation an endangered species in Israel. It is all one-directional and designed to strengthen the ruling coalition and the government in particular. Once courts are weakened and are not independent, then it’s a free for all.
The fact that we don’t have a typical democratic system of checks and balances has been a predicament for Israel for ages. We don’t have a proper Constitution; we don’t have a proper Bill of Rights; and these reforms will further weaken progress and undercut the limited advance we have achieved over the years.
Of course, Israel also has a special minority population who are non-Jews. These reforms might leave them further disenfranchised and weakened. Who will guard them? Their rights are not secured. We are on the course of becoming like Viktor Orbán’s Hungary.
Q: What will happen to Israel politically?
A: It’s very rare for an institution that has acquired power to give it up. Our concern is once the coalition’s bills and constitutional amendments are made into law, the political spectrum will be narrowed down. So in the next election or the one after it, we’d be choosing between Likud A or Likud B. It’s not likely this coalition will pass legislation that will allow for diverse parties within Israel. Democracy hinges upon public deliberation, civil society and robust academia—all of these institutions are now under attack.
And we’ve seen this elsewhere. This book has been written before, so we know that this process works.
Q: How can this impact Israel diplomatically?
A: I’m concerned about our relationship with the United States. If we say our alliance is based on shared ideas and values, then that is currently under attack. If the “reform” passes, the U.S. might eventually question itself. They will say, “Is this a country we want to align ourselves with?”
If this coalition continues with its ideas it may even change the scope of the law of return and what it means to be a Jew. The dominant form of Judaism in our government now is not an inclusive one; it leans ultra-Orthodox and shuns Reform Judaism. It advances a very restricted, homophobic, xenophobic and misogynistic perspective of religion. This is only one version of Judaism, and it is not one welcomed by the United States and many Jewish communities. So I see a potential for a real clash with American Jews. We can’t let this happen.
Q: Why is there such a rush to implement these sweeping changes now?
A: We’re seeing a rare constellation of certain things that led to this perfect storm. We have an alignment of three vectors:
— Prime Minister Netanyahu’s criminal trial puts him in a conflict of interest, to put it mildly. Many say he’s the driving force behind this because he could potentially even have a say on the election of Supreme Court justices who would hear his appeal.
— The Haredim. They’re trying to secure their position regarding several issues which have been a point of contention for them, such as: A) IDF conscription; B) Budget for their education system and allowing them to be exempt from studying core subjects including English and math. This is an opportunity for them to secure their autonomy.
— Bolstering the Rothman/ Smotrich/Levin cluster. This, is of course, in reference to MK Simcha Rothman, Finance Minister Bezalel Smotrich, and Justice Minister Yariv Levin, who are proponents of the “reform.” They are part of a right-wing settler group that would like to eliminate all obstacles to the settlement enterprise, and more generally recast our state institutions and society in a pronounced conservative, Judeocentric mold.
Q: President Isaac Herzog said he’s confident that he may be able to broker a truce in the coming days. Do you share his optimism?
A: The president’s attempt to derail this rush into judicial reforms on a scale we’ve never seen before let alone driven by such vehemence is laudable. But the proposal he presented to the public last week is problematic, according to many legal scholars. It doesn’t secure an Israeli Bill of Rights or the rights of minorities; it accepts the idea of an override clause that opens the gate for serious infringement of minority rights; and its outline of a reformed judicial appointment scheme that might endanger courts’ independence.
It is exactly for these reasons that I think it stands a chance to succeed. After all, it takes the Rothman/Levin perception of reality as a starting point. So, compromise is achievable, but we may pay too high a price for it.