Australia/Israel Review, Featured


Editorial: Cooling the Controversy

Aug 1, 2023 | Colin Rubenstein

Protesters against the law limiting court power in Haifa, July 2023 (Image: Shutterstock)
Protesters against the law limiting court power in Haifa, July 2023 (Image: Shutterstock)

Wherever you stand on Israeli politics or the controversial judicial reforms that have been on top of PM Binyamin Netanyahu’s Government’s agenda since January, the way the “reasonableness” element of the reform package was passed into law on July 24 is deeply concerning. 

The law removed from Israel’s Supreme Court the power to overturn administrative decisions and appointments by the government or ministers on the basis that they are “unreasonable”. 

Opponents of the law are now lining up to challenge the law in the Supreme Court itself, opening up the possibility of a constitutional crisis the likes of which Israel has never known should the Court invalidate the law, and the Government refuse to accept this.

Israel, of course, has no written constitution, but makes do with a number of “Basic Laws” that have been introduced piecemeal over the years – a fluid constitutional arrangement that is far from comprehensive. 

So Israel’s legal system, for all its merits, is a complicated work in progress, and polls show that most Israelis agree that some kind of judicial reform is appropriate. The Israeli judiciary is indeed unusually powerful, and the limits of that power are not well defined in any written legal framework. In principle, it makes complete sense for the Knesset to pass one or more basic laws clearly setting out and delimiting the courts’ roles and powers. 

Furthermore, polls show that limiting the subjective “reasonableness” standard for evaluating governmental decisions is the least controversial element of the judicial reform proposals.

Yet even the strongest proponents of such changes cannot credibly argue that the Netanyahu Government has handled its judicial reform agenda well. It has not only failed so far to pass most of it, but the controversy it has engendered through its efforts has also been so intense that it has created serious strains on social cohesion, as well as adverse economic and security implications for Israel as a whole – something no responsible government would want to witness.

Among other problems, the Government started out with a wildly ambitious ambit claim for reform, and initially appeared completely uninterested in public consultation or dialogue with the Opposition regarding its proposals. It has also repeatedly allowed extreme members of the governing coalition to put forward legislative proposals which alarm and horrify large segments of Israeli society. 

The partisan, hasty and divisive process which led to the passage of the current bill seemed to be part and parcel of this clumsy and abrasive approach. 

There are certainly valid arguments for the Court’s use of “reasonableness” to be codified and limited, and for other aspects of the proposed legal reforms. Yet, for the good of the country, this should only have been done through a process that includes respectful negotiations, conducted in good faith, with the goal of achieving something approaching genuine national consensus. 

Netanyahu’s coalition, which holds 64 seats in the 120-seat Knesset, does have a clear mandate to govern the country. It does not, however, have a mandate to unilaterally change the way the country is governed without achieving a wider consensus for its reforms – especially given the details of its reform proposals were not revealed before the last election. 

Meanwhile, while the ruling coalition, by definition, shoulders the greatest responsibility to act in the national interest and serve the entire country – and not only its own voters – critics and elements of the Opposition have also certainly been guilty of irresponsible behaviour.

Emotionally charged terms such as a judicial “coup”, or a would-be “dictatorship” have been thrown around in response to every proposal by the Netanyahu Government. Such rhetoric amounts not only to wild exaggeration, but creates resentment that makes it harder to bring the two sides together.

Whether one supports or strongly opposes the recently passed “reasonableness” bill, there is simply no factual basis for the hyperbolic assertions being made that its passage represents the end of Israeli democracy or the beginning of authoritarianism.

Likewise, the encouragement being given for pilots and other key reservists in the Israel security forces to issue threats to stop volunteering over the judicial reform controversy is also foolishly short-sighted. Besides increasing the already intense polarisation in society, it creates a precedent for employing similar pressure tactics over controversial issues in the future which could make it difficult for any government, left or right, to function.

In addition, throughout the past 75 years, keeping politics out of the IDF has been one of the secrets to its strength. Anything that projects an image of a weaker, divided IDF only invites provocations and direct challenges from Iran, Hezbollah, Hamas, Palestinian Islamic Jihad and Israel’s other dedicated and determined enemies. 

Despite the above, it is also worth noting that, through the demonstrations and counter-demonstrations and parliamentary mayhem that has sometimes bordered on chaos, there have been positive signs for Israel’s democratic future.

With few exceptions, protests both for and against the judicial reform have been peaceful, and the police response restrained. 

Israelis have largely been shown to deeply care not only about their country, but about one another, as videos taken on July 24 in Jerusalem’s train station remarkably showed. Anti-reform demonstrators arriving in Jerusalem, and pro-reform protesters headed to Tel Aviv, passed each other on long escalators and greeted one another with not only civility, but more than a few high-fives.

It is a lesson that both the Israeli Government and its Opposition should take to heart in the aftermath of the vote. With the Knesset’s summer recess now in effect, lasting until the end of the the September/October High Holiday season, moves to pass even more contentious parts of the judicial reform are now on hold. Netanyahu has called for a period of negotiations until November to reach a consensus on reforms that can be introduced later this year. 

This timely pause should not be wasted. It presents another chance for the two sides to come together in a spirit of mutual respect, goodwill and patriotism and genuinely try to reach a consensus position – which remains the only possible way forward.

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