September 26, 2023

ONLY HALF THE BATTLE:

After the Fall (Hillel Halkin, Fall 2023, Jewish Review of Books)

The demonstrators are all ages. One sees grandparents, parents, and children side by side. Nearly all belong to what can be called secular Israel, keeping in mind that many secular Israelis observe some Jewish rituals in their homes; kippot and other signs of strict religious observance are rare. Few of the protesters have been involved in political activity before. They are not demonstrating for a cause or ideology. They have turned out week after week because they fear that the alliance of an indicted prime minister, brainless and spineless politicians, fundamentalist rabbis, Land of Israel zealots, and Kahanist
xenophobes that is now running the country they live in and love will make it unlivable.

And they have succeeded. When Justice Minister Yariv Levin presented his judicial reform plan to the Knesset on January 4, it contained four main planks: the abolition of the courts' right to strike down legislation or executive action as "unreasonable"; an "override clause" that would empower the Knesset to reverse court decisions by a simple majority vote; a change in the composition of Israel's Judicial Selection Committee that would give the elected government control of the appointment of all judges; and the demotion of the attorney general's office to a merely advisory body whose representatives could be fired at will and whose legal opinions, hitherto binding on the government's ministries, could be freely ignored. These measures would have allowed the Knesset and government to pass any law and issue any edict without effective judicial review or restraint, and ultimately, to pack the courts with subservient judges, as has been done in once-democratic countries such as Poland and Hungary.

It has been argued by proponents of the reforms that they are less drastic than claimed and are needed to correct imbalances created by an activist High Court that has for years exceeded its legitimate mandate. There is something to be said for this. Israel's High Court has indeed allowed itself to rule on issues that do not generally reach other such courts and to judge them by standards that few other courts would apply. Although the High Court has sometimes been drawn into vacuums created by government or Knesset inaction, it is admittedly problematic when, say, a court decides that a democratically elected government has behaved "unreasonably" rather than illegally. Yet is it any less problematic when a democratically elected government regularly flouts democratic norms by such acts as appointing a twice-convicted felon as its minister of the interior or an outspoken racist with a long record of inciting and defending violence to head its ministry in charge of the police? Does not the public need to be protected, whether by the courts or ministerial legal advisers with real powers, from a government like Benjamin Netanyahu's, even if it has elected it?

In the end, the Netanyahu government backed down from its original plan to ram Levin's entire package of reforms through the Knesset by the end of the latter's summer session and put only one of its proposals, revocation of the "reasonableness" criterion, up for a vote--and even that was approved in a watered-down version that applies to the decisions of cabinet ministers alone and not, as originally planned, to those of lesser officials as well. This retreat was due to the demonstrators.

Not just due to them, of course. Viewed narrowly, it was not due to them at all, since what caused the government to backpedal were other things: the threat of striking reservists; warnings by Israel's business elite of a severe economic downturn; a flight of capital from the country; a consequent plunge in the value of the shekel; the beginnings of a relocation abroad of Israel's vaunted high-tech sector; a possible downgrade of its credit rating; the worried reaction of foreign countries, particularly the United States; and public opinion polls showing part of the coalition's Likud electoral base turning against it. Netanyahu and his partners could put on a brave face and declare that all this would pass once it was realized that they meant to stand their ground, but they were scared by it and rightly so.



Posted by at September 26, 2023 12:00 AM

  

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