OPINION:
In 30 weeks of protests against Israeli Prime Minister Benjamin Netanyahu’s judicial reforms, hundreds of thousands of Israelis have taken to the streets. Doctors have briefly walked away from their jobs, military reservists threaten not to report for duty, and the nation’s largest labor union has threatened a general strike.
The protesters claim that Mr. Netanyahu’s reforms would end democracy in Israel.
President Biden’s view unsurprisingly matches the media’s, which characterize Mr. Netanyahu’s government as “ultra-right” and its judicial reforms as radical and anti-democratic. In a July 23 telephone call, Mr. Biden pressured Mr. Netanyahu to abandon his proposed reforms.
With one exception, Mr. Netanyahu’s reforms — some proposed and one just enacted — would enhance democracy, not destroy it. The media cover the protests but give little or no insight into what is being protested.
Israel’s nervous breakdown results from the unfortunate combination of several aspects of its government: its “Basic Laws,” its parliamentary form of government, its imperial judiciary and Mr. Netanyahu’s government, which is cobbled together from several conservative and religious factions.
If a prime minister not named Netanyahu were in office, the protests may not have occurred.
Israel has no written constitution, only a set of Basic Laws, some of which go back to the nation’s founding. The people who founded Israel were not socialists and didn’t quite establish a welfare state, but they did create a very liberal democracy.
The instability of Israeli politics and Mr. Netanyahu’s tenuous hold on power are reflected in the fact that Israel has had five general elections in four years.
Mr. Netanyahu has said that he has withdrawn one part of his proposed judicial reforms that would have been destructive of Israeli democracy. That proposal would have enabled the Israeli parliament to overturn any Supreme Court decision by a simple majority vote.
In a parliamentary system of government such as Israel’s and the United Kingdom’s (from which Israel borrows much of its law), a prime minister is chosen by a parliamentary majority. There are no circumstances like the one we have now, in which one party holds half of the legislature and the other holds the prime minister’s post. Israel’s parliament is a unicameral legislature.
That means that, had Mr. Netanyahu not dropped it, that proposal, if enacted, would have effectively established the prime minister as a dictator.
Israel’s judicial system is badly in need of other reforms. Consider the just-passed change to Israel’s Basic Laws that take away the courts’ ability to strike down government administrative actions — Cabinet minister appointments, decisions on the construction of soccer stadiums, child care subsidies and more — on the basis that they are not “reasonable in the extreme.”
The “reasonableness” standard is vague and entirely subjective. Under the U.S. Constitution, it wouldn’t last 10 minutes. Taking the “reasonableness” standard away from Israeli courts reduces their power to act arbitrarily.
Another part of Mr. Netanyahu’s judicial reforms would change the way that judges are selected. Currently, Israeli judges are picked by a Judicial Selection Committee, which is made up of the minister of justice, one other Cabinet member, the president of the Israeli Supreme Court and two other justices, two members of the Knesset (Israel’s parliament) and two members of the Israeli Bar Association.
The reform that Mr. Netanyahu’s government proposes would replace the two bar association members with two members of the Knesset. That proposal is hardly anti-democratic, and it actually doesn’t go far enough.
Judges who haven’t retired from the bench should have no voice in choosing their colleagues and successors. Mr. Netanyahu’s proposal would make the Israeli system more like ours, which is far from perfect but is democratic.
Israel’s parliament and supreme court are now on their summer recesses and won’t be back until September, when more judicial reforms will be taken up. In the meantime, lawsuits have already been filed against the law that takes the “reasonableness” standard away from the courts.
The protests will continue. They have already begun to destabilize Israel’s economy.
Moody’s, a financial rating service, has already issued a report warning of “significant risk” to Israel’s economy due to Mr. Netanyahu’s press for judicial reforms, and Morgan Stanley has changed its rating for Israeli sovereign debt to a “dislike stance.”
The greatest dangers to Israel’s economy and national security will not arise from Mr. Netanyahu’s agenda but from the Israeli Supreme Court’s consideration of the suits against the new law. It has already scheduled an initial hearing on them in September.
If the Israeli high court strikes down the change of law doing away with the “reasonableness” standard, it would result in a breakdown of the Israeli legal system and an impasse.
The only recourse would be if the Israeli parliament repealed the new law, which is very unlikely. Both sides of the Israeli parliament are reportedly entrenched and not open to significant compromise.
Perhaps the Israeli Supreme Court will allow the new law to stand. It should. The “reasonableness” standard gives that court so much arbitrary power that any judge should realize is too subjective to apply to any case.
Or perhaps it will overrule the new law and bring Israel to its worst crisis since the 1973 Arab-Israeli War.
• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.
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