“Bad Precedent, Need to Begin Again, or Scrap Altogether”: A Comment on the Proposed Judicial Overhaul in Israel
Julia Shanta, Online, Staff Writer
April 11th, 2023
Recent calls for judicial overhaul in Israel signal yet another instance of a political system divided, marred by identity politics and the rise of collective victimhood. Despite the rather heated political opposition to Prime Minister Benjamin Netanyahu’s proposal for judicial reform in Israel, the latter, or rather, the current, status of Israel’s judiciary is nothing to be touted on either. What’s clear is that Israel’s judicial system needs to undergo some type of reform. What that reform should look like however, is highly debated.
Right-wing conservatives who make up a large proportion of Netanyahu’s coalition government believe that judicial reform is necessary in order to curb the Supreme court’s unrestricted ability to create laws as they see fit. They believe that this type of radical reform is needed to set Israel’s judiciary on a better, more regulated, path (needed to begin again). While left-wing oppositionists, who are known for being more liberal and who view socialist policies favorably, see the proposed judicial reform as a downward spiral into fascism and potential regional civil war. In essence, they believe it sets a negative precedent, and sets the stage for further abuses of power. In my mind, it seems that neither party (right-wing, left- wing, or Secularist Jews) are correct, rather both parties seem to be at extremes of the spectrum. In essence, what exists is a battle between ‘bad precedent’ and ‘needing to begin again’. We know from Israel’s history over the last couple of decades, that consensus is unlikely. With the power that the far- right has, it’s unlikely that they will be willing to concede on any of the proposed areas. However, the judiciary needs to be reformed. What is up for debate is how much the public are willing to risk, and how willing the current government is to be receptive to the will of the people. One thing that may be wishful thinking, but is yet to be seen, is whether an inciting of judicial reform can work to align people of disparate backgrounds on the basis of their Israeli identity.
Even so, sticking to the status quo may not be what is best. Many argue that Israel’s issue with their judiciary is its tendency to discriminate against its Arab Israeli minority, and its’ ‘free rein’ on creating legislation in the Supreme Court. This is largely due to their present ‘reasonableness clause’ and its sheer lack of checks and balances. However, much of this is riddled in identity politics that date back to the Second World War. The struggle to create a strengthened Israeli identity after the Second World War gave rise to Zionism as the answer to the ‘Jewish Question’. The goal of the Zionist movement was to refashion the negative stereotypical Jewish image and create a culture and space where Jews could practice their religion and language freely. However, the Jewish-Arab conflict brought a wave of Jewish migrants into the newly established Israel, who did not feel a strong connection to the Zionist ideology.
This ridding of the “old other-ing (not-gentile) that constructed their identity in the past had instead become ‘not Arab’. So Iraeliness in essence came to be defined as much by this new other-ing of not being Arab than by the first one - of the new Jew free from persecution.”
This same “other-ing” is infused into Israel’s judiciary. Jewish practices like circumcision, bar mitzvahs and Passover are not only embedded into the social fabric of the country but are core values of the law in and of itself. Over the past couple of years, the Knesset, the Israeli parliament, has created laws that have only furthered this structural discrimination. An example is the Nakba Law, which “authorizes the Minister of Finance to relinquish monetary support if the body or institution has made any payment towards an event or action that undermines the ‘existence of Israel as a Jewish and democratic state,’ violates the symbols of the State, or marks the date of Israel’s establishment ‘as a day of mourning.’”
This reinforces critical opposition that argues that the Supreme Court has overreached since the 90s. In a brief overview of individual commentary, it seems that a majority of Israelis believe that some type of reform is necessary. Calls for consensus reform have been widespread. However, whether reform comes by way of the constitution, the implementation of a basic law that ensures a better balance between the branches, or judicial reform as it is currently proposed, has yet to be seen. It’s clear and obvious that judicial reform is imminent and necessary.
In the government’s current proposed judicial changes they hope to change the makeup of the nine member committee that selects judges for the court, abolish the ‘reasonableness clause’ and implement an ‘override clause’ which will allow a 61 member majority in the Knesset to override Supreme Court decisions. In practice, “this would essentially grant government representatives an automatic majority on the committee, effectively allowing the government to choose the judges and the next president of the court”. This would mean a complete consolidation of power to the executive branch, which would be largely made up of right-wing conservatives, who have traditionally supported discriminatory policies and practices in the past.
If you take a big picture look at media coverage surrounding the reform, there exists (1) a large American presence, (2) a strong leftist support, (3) a prevalent comparative dialogue between the judiciary in the U.S and the judiciary in Israel, (4) a strong, westernized perception of the current reform bill as undemocratic, and (5) a strong call for consensus. What is exceedingly clear is that coverage is not only around whether the reform bill should pass, but how it affects segmented minorities in Israel, namely Israel’s Palestinian and LGBTQ+ minorities.
Today, Israel’s democracy is largely ethnic rather than liberal, which means that Palestinians or non-majority citizens are not afforded the same rights as Jews. Therefore, in a discussion around the undemocratic nature of the current proposed judicial reform, we must consider the status of Israel’s current judiciary in reference to what it truly means to live in a democratic country. More so, we must consider whether a refusal for judicial reform means we accept staying in the status quo, which includes its present discrimination and exclusion of its Palestinian minorities, and if Israel decides to go forward with Judicial reform as it is proposed, what effect, if any, would that have on minorities and on the freedoms of Israelis in Israel. Is there a way to foster consensus between the parties through this phenomenon of collective victimhood that we are seeing through the protests? Or are the parties simply too entrenched in their own values that they miss out on the collective identity shared through their Israeli nationality? Do we have bad precedent, do we need to begin again, or do we simply scrap it altogether? If it is ‘need to begin again’, how might we envision a future under the proposed reform? It seems that the only reasonable solution is to scrap it altogether with the intention to create a consensual basic law alongside the Supreme Court that ensures protection against the consolidation of power and actualizes a better balance between the branches. Whether that is possible or realistic, has yet to be determined.
Sources:
https://www.google.com/url?q=https://www.jns.org/opinion/in-short-israels-judicial-reform-is-not- undemocratic/&sa=D&source=docs&ust=1680367138414090&usg=AOvVaw0bSmUDwAepi1Pa ZbM5TJ4L
https://journals.sagepub.com/doi/pdf/10.1177/0971333618819152 https://www.google.com/url?q=https://us.boell.org/en/2015/11/06/power-otherness-identity-politic s-us-and-israel&sa=D&source=docs&ust=1680367179592486&usg=AOvVaw1-xQ46f2Dp8jm3m Y2rBArM
https://www.masaisrael.org/israeli-judicial-reform/?gclid=CjwKCAjwoIqhBhAGEiwArXT7K6IT-sdl DkhG1MBjet80n7TZm-gfb5gCweNKpPmSbJnRSf_olkvBmBoCxNgQAvD_BwE https://jewishcurrents.org/israels-populist-judicial-revolution https://www.nytimes.com/article/israel-judiciary-crisis-explainer.html https://berkleycenter.georgetown.edu/responses/israel-as-an-ethnic-democracy-palestinian-citiz ens-and-the-fight-for-equal-rights