BICOM

On the evening of 27^th July 2023, BICOM Research Associate Jack Omer-Jackaman briefed Oxford’s OJC Mosaic group on the passing of the reasonability bill and its impact on Israeli society. Below is the text of his remarks.

 

Good evening, it’s lovely to see you all and I’m very pleased to be here. I’ve been asked to speak a little about current events in Israel. It is an undoubtedly historic moment, a moment of profound rupture and civil strife. I’m very pleased we have Dr Ruvi Ziegler here to correct me if – or more likely when – I err on questions of judicial or constitutional detail. I lasted two months at law school before switching to pursue doctoral studies in history. It was not much loss to the law, I fear! I’ll try and present things as neutrally as I can.

Some of you may be following all this very closely, others may be aware of the broad outline but not the specifics. Still more may know something significant is happening but not much beyond that. I’ll try to briefly cover all bases and those following it closely will have to forgive me if I repeat things of which they’re already aware.

The main topical headline is that on Monday the Knesset passed a bill annulling the Israeli Supreme Court’s ability to use the principle of reasonability – actually to be more accurate the principle of extreme unreasonability – as grounds to strike down government decisions. The bill passed by 64 votes to zero; the opposition vacated the chamber in protest, so no nay votes were registered. We’ll look at what this principle actually means a bit later, but this was a point reached in a journey that began, ostensibly, in January, though its origins go back a lot further. We can only speculate at this point about how many more miles it has left to run.

I think we have to set a little historical context to really understand what’s happening here. Israel’s founders, chief among them David Ben Gurion, deferred the drafting of a constitution; Israel has no constitution. What it has are a set of founding principles in its declaration of independence, and a system of “basic laws”, 13 currently, which are laws understood as having quasi constitutional status; the 2018 Nation state law was the most recently passed. In part the decision to avoid a constitution was one of political expediency –  Ben Gurion wanted the flexibility and freedom to develop the state unhindered by one; in part it was a reflection of the fact that at the time, as now, consensus on the character of the state was very difficult to achieve; and in part Ben Gurion in particular felt it was wrong to set the tone of a nation which he anticipated, rightly, would over the decades absorb large immigrant communities bringing with them different cultural norms, different ways of expressing Jewishness. It would be wrong, he thought, to straitjacket those future Israelis with a constitution determined before their arrival.

So, the question of a constitution was left open.

Israel is also a unicameral parliamentary system – there is no second chamber. Nor is there, in a sense, direct parliamentary representation. Israelis vote for a party, not an MP, and the list system can mean that the distinction between the legislative and the executive is fairly limited. If a government has a majority, as this one does, and its coalition discipline is relatively strong, then for each bill that is proposed, it has a strong chance of passing it.

Within this constitutional arrangement, within this context, you can guess at the main question: what are the limits on the power of a government? What democratic procedures are there to moderate it?

Until 1992, the Supreme Court did not particularly function as a moderating or blocking force in Israeli politics. If the government was hindered, it was more by the civil service. In 1992, things began to change, and we can partly date today’s battle to then. In 1992, the court began what its most famous exponent called its “constitutional revolution”. Aharon Barak joined the court as a justice in 1992 and became its President in 1995. It is his vision which much of the Israeli right and the judicial reformers have opposed for the last 30 years and that they are seeking to roll back now. The Knesset passed two fairly revolutionary basic laws in 1992 – “Basic Law: Human Dignity and Liberty” and “Basic Law: Freedom of Occupation”. What Barak did, in the wake of these laws, was to interpret them, and the other basic laws, as a constitution, and he therefore construed the Supreme Court as having the authority, the duty in fact, to oppose those decisions of the government which it considers in breach of the basic laws. So, from this point you began to see the judiciary functioning much more as an interpretive branch of government.

You will hear the reformers refer to it as the “activist” Supreme Court, something they consider wholly inappropriate. The reformist perception has been that since this time the court has repeatedly thwarted government decisions and that it has done so undemocratically. Crucially, the argument is that is governments of the right which have been most blocked. Defenders of the court indicate that in comparison with other liberal democracies, its number of interventions is actually very low indeed – it’s in the 20s; to which critics reply that this doesn’t account for decisions not taken by right-wing governments in the sure knowledge that the court would strike them down.

The idea that judges in Israel skew left-wing is also quite contested, especially since former Justice Minister Ayelet Shaked was able to greatly increase the number of demonstrably conservative judges a few years ago.

So, this is the background. Let’s go back to November last year. As I’m sure you’ll recall, the fairly unprecedented change government led by Naftali Bennett and Yair Lapid, and including the Islamist Ra’am party, fell a little over a year ago, having lasted a year or so. The reasons why are interesting but not so relevant for us here. So, Israel was plunged into yet another election. This one, held in November last year, didn’t produce an outright winner – Israeli elections never do – but it did secure a coalition, with a 64-seat mandate, for the right-wing, and this time a right-wing which was in its own way just as unprecedented as the change government had been before it. You had Prime Minister Netanyahu’s Likud – and quite a changed Likud – along with its regular partners in the ultra-Orthodox parties, Shas and United Torah Judaism. But joining them, for the first time, you had what I think we can safely call the extreme right-wing parties of Religious Zionism and Jewish power, led by Bezalel Smotrich and Itamar Ben Gvir respectively, which ran on one ticket before then splitting back after the election. In coalition negotiations these men managed to extract very senior cabinet positions – they are the finance minister and national security minister respectively, and Smotrich also enjoys a brief in the West Bank, too. What you also had in senior cabinet roles were some of the members of the Likud most opposed to the courts and most ideologically committed to combating their authority – specifically, Yariv Levin as Justice Minister. You also had an anti-court ideologue in Simcha Rothman, from Religious Zionism, chairing the important Knesset committee which deals with constitutional questions.

So, you have an unprecedentedly right-wing government, and one unprecedentedly committed to curbing the power of the courts. It’s important to say that Netanyahu himself is not an ideologue in this regard; but this was the government he formed. The reaction to that government, both abroad and at home, was of a kind not usually found when the centre or centre left is defeated. In other words, those concerned were unusually concerned. This is important for how the protest movement has developed; there was, in a sense, the beginnings of a movement even before the judicial reform issue came to a head.

In January, shortly after the government had been sworn in, Yariv Levin, the Justice Minister, announced a package of judicial reforms which the government would pursue. The package confirmed the fears I’ve just mentioned and almost immediately initiated a protest movement which has grown and grown, both in size and impact.

Levin proposed four reform elements:

• The first was removing the standard of reasonableness or unreasonableness. The standard of unreasonableness has roots in English law, actually, and is used in other countries too. It is deployed in areas where a level of vagueness exists within legislation and allows the court to oversee government decisions where the government’s decision “disproportionately focuses on political interests without sufficient consideration for public trust and its protection.” It was, for example, one of the standards employed by the Supreme Court early this year when it blocked the appointment of Shas leader Aryeh Deri as a minister in the new government. Deri is a twice convicted felon, and the court ruled that appointing such a person was unreasonable. Crucially, anticipating that one day its power to use this criterion might be stripped, it also deployed another legal principle, which we can get into if you want. So that’s the first: removing reasonability.
• The second was to propose a Knesset override of Supreme Court decisions. In other words, if the court blocks an action of the government or Knesset, the Knesset would be able to override that decision and reinstitute the policy. The idea of an override itself was actually quite mainstream and had some bipartisan support. The difference is on the majority needed in the Knesset to overrule the court. Levin proposed a simple majority, so that’s half the Knesset plus 1 – 61 votes. You can see that any government by definition has to have a majority, so being able to override with a simple majority basically means that any disciplined government can override the court. For that reason, others had previously proposed a larger majority being needed, 75 or 80 perhaps. In this way, a government would be highly likely to need the support of opposition votes to override. This aspect of the reform is particularly important to the ultra-Orthodox parties. Why? Because they seek to finally enshrine in law the exemption of young ultra-Orthodox men from conscription into the IDF. At the moment this is done with a very loose arrangement, and they want it properly codified. They knew that the court would very likely do as it has done when previous attempts have been made and overrule this. Hence the override is very important to them.
• The third element, and this is really important, is a restructuring of the Judicial Selection Committee, which is the body which selects judges at all levels of the judiciary. At present the committee is a mixture of government, opposition, the judiciary itself, and the Israeli Bar Association. Selection of a Supreme Court justice requires a majority of 7 of the 9 members, which means neither politicians nor justices can unilaterally control the selection process. The reformers argue that it makes the judiciary a self-electing club – that liberal judges elect fellow liberal judges to join and then succeed them. Levin’s proposal essentially gives the government total control of the committee, and in fact he is refusing to call a meeting of it to fill judicial posts until it’s reformed.
• The fourth concerns the independence and authority of government legal advisors. At the moment, they’re civil servants rather than political appointees, and they report to the Attorney General, not to ministers. They’re also able to block ministry actions if they are in violation of the law. The reform would make them political appointees and advisory only.

There are some other elements, like ending the President of the Supreme Court being automatically decided by seniority, lowering the retirement age of judges, and splitting the role of the attorney general. But these four are the main reforms.

The plan, initially, was to proceed with them as a package, one at a time, but as a package. You will all have seen what happened in response. A completely unprecedented protest movement, mainly of the centre and left but by no means exclusively. The breadth of its makeup is also pretty extraordinary – Business, hi-tech, doctors, lawyers, local government etc. Between January and March this movement gathered pace and there have now been 30 consecutive weeks of protest. The scale of protest has been extraordinary enough but the tipping point, I would say the crucial element, has been the involvement of significant sections of the military and security establishment and, more crucially still, of reservists, many of whom have threatened, and continue to threaten, to refuse call up in protest against the reforms. For a country like Israel this is profound.

You also saw unusually explicit concerns voiced by the Biden administration. Biden is a very dedicated friend of Israel, of very long standing. But he has been unusually frank about American concerns over the reforms. This has come at a time when Israel is seeking to influence US policy on Iran which under Biden has tilted towards a new agreement designed to limit Iranian nuclear activity. And when the US is trying to broker a normalisation deal between Israel and the Saudis. This is Netanyahu’s foreign policy dream, his stated ambition, one which would in his words “end the Arab-Israeli conflict”. So, tensions with the US have come at an awkward time. Some are predicting that in fact this will fundamentally alter the US-Israeli relationship. You may have read Tom Friedman’s recent columns suggesting as much, while Martin Indyk, a very senior diplomat and former US envoy, has called for re-examining US aid to Israel. I think this would be very unlikely indeed, but there is no doubt that you are looking at deep friction with Israel’s most important ally. Much has been made of the fact that Netanyahu has not yet been invited to the White House, for example.

Alongside the popular protests, the military declarations of refusal, and the tensions with the US, you have had the response of the financial markets and institutions. From the start, the reform programme has caused alarm. The markets have been spooked, as the expression goes. The Israeli stock exchange and the shekel have both taken a hit. Moody’s, the international credit agency, has threatened to downgrade Israel’s credit rating.

With all this swirling around, in March the Defence Minister, Yoav Gallant, who is on the moderate wing of the Likud, sounded warnings about the impact of the reforms on the unity and preparedness of the IDF. He was then fired by the prime minister, following which tens of thousands of Israelis took to the streets, and the Histadrut, the main labour union, called a general strike. You’ll remember the scenes: the airport was chaotic, even the London embassy went out on strike. Netanyahu then not only rescinded Gallant’s firing but paused the reforms. He also committed to a process of dialogue and compromise with the opposition under the auspices of President Herzog.

Some elements of the opposition, notably Avigdor Lieberman’s Yisrael Beitenu party and at various times the Labour party, boycotted these talks, believing that the government wasn’t in earnest. Various proposals for moderated versions of the reforms were put forward. Herzog really worked incredibly hard at trying to achieve an accord.

But unfortunately that process failed, both sides blaming the other. Then, in an interview with the Wall Street Journal a few months ago – his choice of audience not coincidental – Netanyahu announced that the reforms would proceed, beginning with reasonability. Which brings us to today.

A few more words on the military-security aspect. At the moment, the activism and threats of non-service are restricted to reservists. I think there is the very real chance that it spreads to conscripted troops and professional career soldiers too, but we’re not there yet. In the British commentary I think there is a failure to understand the role of the reservists, though. These are not backups. In many cases, in fact, these people are the backbone of particular branches or units, especially in the Air Force, where they are 50-60% of pilots and navigators. Across the board, in fact, it is the most “elite” units, like the Sayeret Matkal, which are providing the bulk of the dissent.

What is the impact of this? Senior IDF officers and experts are concerned about the impact on unity, on preparedness, and on Israel’s deterrence. And this is happening at a time when Israel’s security concerns are many and varied. In the north, Hezbollah is growing increasingly assertive and bellicose. In the West Bank, the Palestinian Authority, Israel’s ostensible security partner, has lost control of large areas in which it is supposed to exercise it, notably Jenin and Nablus. Here, both Hamas and new groups, all backed by Iran, are increasingly influential and have launched many attacks on Israelis, both in West Bank settlements and over the green line. Iranian proxies in Syria remain a constant threat and the Israeli Air Force is constantly required to undertake missions to degrade it. These are just some of the concerns, and there is a sense, and it’s reinforced by their public statements (Hassan Nasrallah, for example), that these enemies smell weakness. So, any disunity and unpreparedness as there may be, comes at a very difficult time.

What next, is the big question. In part, this depends on another big question, which only those on the inside really know, and that’s who is driving the bus? Who is in charge of the government’s agenda, it’s direction? There are those who suggest that the prime minister, in establishing this coalition, sacrificed so much and made so many concessions that he is now rather in thrall to his colleagues. Ben Gvir, for example, makes repeated threats to leave the coalition and take his MKs with him if his needs are not met. This would of course bring down the government.

Evidence to support this proposition would come from Netanyahu’s past. These reforms are very out of character for him. Netanyahu is a calculating, deeply intellectual, and risk averse politician. He is not, in contrast to the rather lazy stereotypes of the foreign press, an ideologue. He’s just not. To embark on a project like this – which spooks the market, which tears at the social fabric, which affects IDF unity, which alienates allies – is a very un-Netanyahu move. So, if you accept this assessment, the question is has he changed, or is he beholden to colleagues who really are ideologues on reform? There is also of course his own personal legal troubles, which some would argue are driving him to try to ensure a judiciary more slanted in his favour.

One of the images of the week, though was from the Knesset in the moments before the vote. Gallant is seen remonstrating with Levin: “give me something,” he says, meaning some compromise to take to the opposition and the protesters. Between them sits the prime minister, rather uninvolved. Today, Likud MK David Bitan, who’s one of the more sceptical Likud MKs on the reforms, was quoted saying that the Likud can no longer be run according to the policies of one man. Some of the Israeli press were speculating about whether he meant Netanyahu or Levin.

The other moderates in the cabinet – Ron Dermer, Gallant, Eli Cohen – are all in important positions, but they are not in the majority. The real crusaders for reform are Levin, who has prime ministerial ambitions, Smotrich, Ben Gvir, Rothman, and several Likudniks. Now, in terms of what next, it really depends on who sets the agenda. There is a scenario in which this is it: the reasonableness bill passes, the government tests it to see if it can accomplish some of the things it wants – the firing of the attorney general, the reinstatement of Aryeh Deri – and the pragmatists prevail and leave it there. Netanyahu continues to speak of hoping to find consensus on the remaining issues. However, Levin, Rothman et al show absolutely no indication that they are done. The changing of the judicial selection committee is the big prize and I think it’s very unlikely they won’t pursue it. They wanted reasonableness done before the end of the current Knesset session. There will now have to be a pause purely because of that. Does the protest movement lose momentum that it can’t recover because of this? Do the Americans move on? Do the markets restabilise?

My estimation on the protest movement is that it is sufficiently motivated and well organised that it won’t dissipate. A statement put out by its leaders only today read thus: “along with continuing to hold protests every Saturday evening, it is incumbent upon us to intensify the fight. We need to use tools that have not been used until now and we have to carry out acts of resistance that are reserved for fighting an illegitimate government, be they financial or be they in disrupting public order and expanding demonstrations. Always without violence, after deliberation and in keeping with High Court of Justice rulings.” Their aim is to persuade the Histadrut to call another general strike, something its leadership is reluctant to do too often.

There is no doubt that part of what is driving the protesters and opponents of reform is not only a structural concern, that these reforms will transform Israel away from liberal democratic norms, but specifically that it is happening under this government. In other words, it is the uses to which this government might put its greater power which frighten the centre, the left, and the old liberal Likud right. Former President Reuven Rivlin famously spoke of the concerning division of Israel into tribes, and we are seeing those lines drawn more clearly.

I’ll finish with this thought: this crisis is profound; it is a real rupture in the social fabric. Talk of civil war, from very sober commentators, is rife. At stake are two divergent, perhaps irreconcilable, visions of Israel and of democracy. To the reformers, for 30 years Israel has suffered under an over-reaching, activist court thwarting the will of the people by restricting their democratically elected government. It must end. To the protesters, under the Israelis system, the court is the only restraint on executive power and is the only guarantor that a government won’t undertake measures which both infringe on human rights and fundamentally alter Israel’s identity as a Jewish and democratic state.

There is a scenario which is really very dramatic. The Supreme Court has received petitions already to strike down the reasonableness bill. In other words, to find unreasonable the bill denying it the right to find something unreasonable! Should they do so, you have a full-blown constitutional crisis, with every instrument of the state faced with a choice over whether to follow the government or the court. Israel is 75 this year. This miracle of a state has known an unfeasible amount of tumult and crisis in that time. Not many, perhaps none, have been as consequential as this.