The chaos in Israel continues and has become a multi-layered political, economic, societal and security crisis following the Parliament’s vote on Monday on a controversial judicial overhaul which risks undermining the independence of its judiciary and the separation of powers in the country.
Despite wide-spread protests against the overhaul which culminated last Saturday with a march to Jerusalem, the Israeli coalition government voted to amend a ‘basic law’ which would abolish the right of the Supreme Court to cancel “unreasonable” decisions by the government and ministers. The “reasonableness” bill is only one element in the proposed judicial overhaul.
This criterion has been used for checks of arbitrary decisions and political appointments in the public administration. The government claims that it only wants to give freedom to politicians to decide on the policies for which they were elected. The opposition has lost all trust in the government and believes that the vote will pave the way for other judicial changes after the Parliament’s summer recess.
Menachem Mazuz, a retired Supreme Court justice, said on Thursday said that the amended law was “clearly anti-democratic and also corrupt”. “It is a corrupt law because the public should understand, in fact every citizen, that every person and state body is obligated to behave reasonably. And here the government comes and says, you all have to behave reasonably, except for us.”
Until the very last minute of the vote, there was some hope that the government and the opposition would agree on a compromise to limit the scope of the “reasonableness” bill but Prime Minister Benjamin Netanyahu gave in to the demands of his far-right coalition partners who threatened to dissolve the government if the bill was not adopted.
“We carried out a necessary democratic step, one designed to restore a measure of balance between the authorities, what we had here for 50 years,” he claimed in a statement after the vote. “We passed the amendment to the reasonableness standard so that the elected government will be able to lead policy according to the will of the majority of the citizens of the state.”
“The coalition will turn to the opposition in order to advance a dialogue between us,” he promised. “We are prepared to discuss everything, immediately, and do so in the round of talks during the Knesset recess and reach a comprehensive agreement on everything and we will add more time should it be needed, until the end of November.”
But Israeli President Isaac Herzog, who tried in vain for four months to mediate a broad consensus solution, expressed deep disappointment. Referring to Tisha b’Av, the mourning day on Thursday in memory of the destruction of the Jewish temple in Jerusalem, he appealed to the Israeli politicians to come to their senses and agree on a solution.
“In all honesty, over the past few days, I too have woken up with a deep feeling of frustration and a heavy sense of crisis.”
“I am also in a turmoil of emotions. I am also hurting and I am also angry. As one who thought that an agreement was possible and worked with all his might around the clock to help, to bridge, to compromise, to lend a hand and to place ladders to help everyone come down from the tree - I am very disappointed.”
On Wednesday, the EU issued for the first time a statement expressing concerns about the developments in Israel related to the judicial overhaul. The statement might come as a surprise in view of EU’s reluctance until now to take any position and interfering in what it considers to be an internal Israeli debate.
But apparently the situation in Israel, after the failure to agree on a broad consensus solution, has deteriorated to such an extent that it also threatens EU-Israeli relations. While describing the on-going debates and demonstrations in Israel as a sign of a “vibrant democracy”, it reminded Israel that the EU-Israel relations are based on shared values. including the separation of powers.
“It is important that the core values on which our partnership is based are preserved. The EU calls on the Israeli government to continue to seek a broad consensus and aim for a process that is inclusive.”
What can the Israeli Supreme Court do in this new situation?
The Brussels Times asked Israeli experts for their comments. Aeyal Gross, Professor of Constitutional and International Law at Tel Aviv University, referred The Brussels Times to his recent blog where he described the “unreasonable amendment” as “a crucial step in the government’s constitutional capture plan”.
The Israeli Supreme Court seems not to be in a hurry to deal with the amendment and has postponed its discussion on it to September, when it also will hear petitions against the Justice Minister’s refusal to convene the Judicial Selection Committee. According to Professor Gross, the “reasonableness” bill was adopted to prevent the Court from striking down decisions like this.
He was skeptical to the idea that the entry into force of the amendment should be postponed until next elections when the Knesset would vote again on it so that the public would know about the proposed change before the elections. “I think it's a bad amendment in any way. I see the value of deferred entry into force in some matters but don’t think that it’s a good solution here.”
The government used a loophole in Israeli legislation. Israel has no written constitution and has instead enacted a number of ‘basic laws’ which quasi-constitutional status. They do not require qualified majority to be adopted and have until now not been challenged by the Supreme Court. The Court has normally struck down other laws that it considered incompatible with the basic laws.
“It’s significant that basic laws have not been struck down before but in principle it’s possible,” Professor Gross said. “It could be that in the future the court will have to deal with laws restricting its ability to strike down laws.”
Is the Israeli government denying the economic reality?
After the vote, Prime Minister Netanyahu and his finance minister dismissed international rating institutions’ warnings and credit assessments of the investments risks in Israel and claimed that Israel's economy is in good shape.
“There are facts and there is spin,” Professor Dan Ben-David at the Department of Public Policy at Tel Aviv University replied. He also heads the Shoresh Institution for Socioeconomic Research, an independent institution which carries out research on Israel’s internal social problems and existential challenges.
“Every serious economist in Israel and those abroad who specialize on Israel’s economy can see the huge – and growing – gap between developed country stock market growth and what has transpired in Israel since the current government was established at the beginning of this year.”
The Israeli shekel was one of the strongest currencies until last year, he explains. According to the Bank of Israel, the shekel has been devalued by ten percent more than actual market conditions dictate. “This is because the ongoing mayhem caused by the government has led to increasing uncertainty about the future of Israel’s economy.”
“When investors are uncertain, they pull their money out of stock markets (hence the growing gap between markets abroad and in Israel), move their money to safer havens abroad (hence the shekel’s devaluation). The devaluation spurs inflation – which is the exact opposite of what the government claims it’s trying to fix.”
“Netanyahu is surely aware of all this. But he is a criminal defendant trying to stay out of jail and is clearly willing to let the country burn to avoid going to jail. Smotrich, the finance minister, does not have a clue about economics. The only reason that he wanted to become finance minister is to open the spigot to vastly increase government support for settler and ultra-orthodox demands.”
After seven months of mass demonstrations and protests, what more can be done to stop the judicial overhaul?
“The government never intended to compromise, only to put a loaded gun at the head of the opposition to try and scare them into agreeing to government demands.”
Israel seems to be on the brink of civil obedience or even worse. Is there room for any optimism to solve the situation?
“I don’t know if optimism is the operative word. But I’m hopeful. Netanyahu and his coalition of populist sycophants and draft dodgers are completely outclassed in terms of ability, motivation and resources by the opposition that they have managed to fuse together. That opposition can – and probably will – bring the country to a halt.”
Cartoon in Israeli daily Haaretz (Twitter)
There is no air force without a double-digit percent of its pilots, he added. There is no army without the elite commando units who rely heavily on their reserves. There is no healthcare sector without the physicians. And then there is the economy. The hi-tech sector employs just a tenth of the workforce, but accounts for half of Israel’s exports.
“The people that put Israel’s economy on the map also have the ability to bring the government to its knees.”
“The magnitude of the protest provides vital reinforcement for the various key Israeli actors to implement what other countries (Poland, Hungary and Turkey, to mention just a few) were unable to do when their democracies fell. Now that Israel’s government crossed the Rubicon on Monday, we’ll see a ratchetting up of the protests to levels that will simply make it impossible for the government to continue functioning.”
“We aren’t ready to give up our country to either our external enemies or to our domestic crazies – and I believe that we’ll prevail,” Professor Ben-David concluded.
M. Apelblat
The Brussels Times
