Source: Ha’aretz by Anshel Pfeffer
Mar 7, 2023
Israelis protest against the government’s justice reform bill in the northern city of Karmiel last Saturday.
Mar 7, 2023
The Knesset has taken a short break for Purim. For the first time since the new Netanyahu government’s presentation of its plan to overhaul Israel’s judiciary, the rushed legislative process has paused for a few days. Even the protests against the plan have slightly abated since the stellar turnout Saturday night.
Not that we’ve lacked for news during this brief hiatus. A draft of the “compromise outline” being prepared by legal experts and President Isaac Herzog has been leaked to the media, though Herzog has quickly disowned it. And both the government and the opposition have found reasons to reject it.
On Thursday the protests are set to resume with a “day of resisting dictatorship,” with more to follow Saturday night. On Sunday, the chairman of the Knesset Constitution, Law and Justice Committee, Simcha Rothman, will begin another packed week of speedy sessions to push through another tranche of the “judicial reform.”
But before that happens, now is a good time to try to assess where the constitutional and political crisis is headed after two months of unprecedented spurts of legislation and protest.
Both sides believe that the coming four weeks, between Purim and Passover, will be crucial. The governing coalition, at least for now, fully intends to get the first round of laws passed in the Knesset before the winter session ends. This time, the protest groups aim to mobilize hundreds of thousands and bring the country to a standstill.
These are uncharted waters for Israel, and any of the following scenarios could be overtaken by developments.
The bulldozer makes it through
The coalition has 64 of the Knesset’s 120 lawmakers, which means that even if a few wavering Likudniks like Yuli Edelstein find a way to absent themselves from the critical votes, the coalition can be pretty confident of passing the legislation. The opposition will grandstand and filibuster, but that won’t stop the parliamentary process.
Outside the Knesset, hundreds of thousands of protesters will gather. They can block roads and besiege parliament, but the police will get the lawmakers through. It may well turn bloody, the country could be paralyzed for days, but the procedure is unstoppable.
Prime Minister Benjamin Netanyahu has said in closed meetings that the process will be like ripping off a Band-Aid – painful but, once it’s over, things will go back to normal. But actually, Israel could remain divided irrevocably, with dire consequences for the future, especially as the Supreme Court won’t give up without a fight and tens of thousands of military reservists will stop turning up for service and civil servants at various levels will resign. The aftermath is likely to be chaos.
Herzog gets everyone around a table
So far, Herzog’s attempts to bring all the sides together for a debate on a more consensual form of constitutional reform have all foundered at the first obstacle. The opposition insists that talks cannot be held while the legislative process continues; that is, “no preconditions,” as opposed to the coalition, which is happy to talk while pushing the changes through the Knesset.
Even if the two sides somehow agree to overcome those initial objections and arrive for talks at the President’s Residence in Jerusalem, there still doesn’t seem to be room for agreement on the core issues of the makeup of the Judicial Appointments Committee, the Supreme Court’s powers to overturn legislation and the status of the ministries’ legal advisers.
From Herzog’s perspective, the best-case scenario sees him getting the coalition to make just enough concessions so that a handful of opposition lawmakers, probably members of Benny Gantz’s National Unity Party, would vote in favor. But even this outcome now seems exceedingly remote. And even if it happened, the great majority of Israelis currently protesting against the government’s plans would still be resolutely opposed.
Netanyahu presses pause
Is there a point where Netanyahu, due to concerns about the economy, his erosion of trust in the security services, pressure from abroad, his constant paranoia of rivals in Likud and his fear of losing control, simply presses pause?
He has made vague hints of being “open to dialogue,” and in meetings with other coalition leaders he has raised this possibility. But at this point, even if he wanted to take time to try to clear the atmosphere, it doesn’t look like his partners will allow him. Justice Minister Yariv Levin, currently the most powerful figure in Likud, has reportedly threatened to resign if there is any prevarication, and all the leaders of his coalition partners are keen to press through with this God-given opportunity to do in the detested Supreme Court.
In the coalition, Netanyahu would have the support of only a handful of relatively moderate Likud lawmakers. That would be enough to stop the legislation but not to save his coalition. After spending five elections and 18 months in the opposition before getting back to Balfour Street, Netanyahu is loath to jeopardize his majority.
And even if he convinced his partners that the delay was just temporary, he would have to sleep at the Prime Minister’s Office, which he won back with such effort. Because back home, his wife Sara and son Yair are hell-bent on punishing the Supreme Court “Bolsheviks” who had the temerity to rule that he has to pay his legal fees out of his own pocket.
The Supreme Court, sitting as the High Court of Justice, will have its opportunity, probably multiple opportunities, to fight back, as the new laws are inevitably petitioned against and the court has to rule on their constitutionality. The absurdity of the judges ruling on laws designed to take away their powers isn’t lost on them, but the growing consensus in the legal community is that the court will rule against the laws, creating the perfect constitutional crisis.
Can Netanyahu et al. accept a ruling that basically goes against their entire purpose? What will happen if an Israeli government decides for the first time to defy a Supreme Court ruling? Will this be the moment Attorney General Gali Baharav-Miara rules that Netanyahu is unfit to continue serving as prime minister because of his corruption trial? And what will Netanyahu do if she does?
In the absence of a constitution, there is no handbook for such a situation. The coalition is unlikely to back down in the face of a Supreme Court that it’s out to suppress. But if the coalition flouts the court’s rulings, the politicians are risking a situation where the civil service and security establishment, which acts on the advice of the attorney general, may refuse to obey the government. In other words, complete anarchy.
So far, dire predictions by Israeli and foreign economists of the legal upheaval’s ramifications for the economy have sent billions of shekels abroad. There have also been reports of tech companies considering moving some of their operations overseas, not to mention a slow but steady slide by the shekel and the Tel Aviv Stock Exchange, even if it’s related to other factors as well.
But a fire sale of government bonds and the shekel could be very near. This happened only a few months ago in Britain because of then-Prime Minister Liz Truss’ harebrained economic plan, and it could certainly happen here. There, after only 45 days in office, Truss was forced to fire her finance minister, reverse course and then announce her resignation. Netanyahu won’t resign if the Israeli economy goes into meltdown, but he may be forced to at least pause the “judicial reform.” After which he may be forced out anyway.
A third intifada in the West Bank and East Jerusalem? Another round of warfare with Gaza? An attack on Iran’s nuclear installations?
All the ingredients for one or all of these developments are currently in the mix as settlers run rampant in Palestinian towns. A representative of theirs just happens to be Netanyahu’s national security minister, Itamar Ben-Gvir, who sends the police to demolish Palestinian homes in Jerusalem as Iran’s enrichment of uranium for its nuclear program reaches new levels.
Let’s leave aside the question of whether Netanyahu is cynical enough to provoke any of these outcomes just to get him out of a political mess. (Previous evidence pointed to Netanyahu as being too risk averse, but previous evidence also showed that Netanyahu wasn’t about to eviscerate the Supreme Court.) Could he give the orders even though thousands of reservists, so vital for Israel’s defense, have said they’ll refuse to turn up?
Nearly all the reservists who have joined the protest have said that if they’re needed in a real emergency, they’ll be there. But what if such an emergency occurs and the government refuses to at least suspend its legislation for the duration? Won’t such a cynical ploy break the reservists’ trust in the government once and for all? Can Netanyahu take that risk?