After weeks of turbulence over the Israeli government’s attempt to weaken its judiciary, the controversial package is in trouble.
Prime Minister Benjamin Netanyahu’s poll numbers have sunk, secular opponents have discovered their voice, and the ultra-Orthodox — original champions of the changes — have gone quiet in fear of backlash. The Bank of Israel says the package could lead to a 2.8% hit to GDP over each of the next three years. Israel’s allies in Washington, London, Paris and Berlin are vocally opposed. And the plan has been put on hold while coalition and opposition negotiators explore a compromise.
Aryeh Deri, head of the ultraOrthodox Shas party that’s part of the ruling coalition, said in remarks published Monday that the government would’ve broken apart if it had tried to push through the plan.
All that said, as the country shuts down for a week of Passover holidays, some of the overhaul’s backers vow to bring it to parliament as soon as next month because of the urgency of taking power from the court, and say they’ll have the votes to win.
“Netanyahu’s been pushed into seeking consensus,” said Yohanan Plesner, president of the Israel Democracy Institute, which has been opposed to the package and advising parties of the center and left on negotiations. “Whether he’ll promote legislation that has true consensus or is just taking a step back to regroup, I’m not sure even he knows. But a process has begun.”
Enthusiasm for the negotiations held at the president’s house isn’t high because mistrust runs deep. But there might be a slim basis for optimism. Netanyahu’s choice to lead the government’s team is Strategic Affairs Minister Ron Dermer, a U.S.-born confidant who says he embraces the need to enshrine individual and civil rights into a new constitutional order, a top demand of the opposition. Both sides say there is good faith at the negotiating table.
The government initially barreled ahead because it said a court that turned interventionist decades ago has upset the balance among the three branches of power. A compromise would have to address this, as well as opponents’ concerns that the state is out to make the court subservient to politicians to create a more religious, populist set of laws — and ones that might put a stop to Netanyahu’s fraud trial.
Those involved in the negotiations have identified several elements that would have to figure in any compromise.
The most contentious would be increasing the power of politicians to select judges, — amid fears that would stack courts in their favor. (Now, the legal establishment has the dominant role.)
Liberals are afraid that a weaker court could compromise the rights of the minority, and want individual rights enshrined in laws that parliament couldn’t easily alter.
The Supreme Court has not only overturned laws as unconstitutional, but has also made its impact felt through the cases it elects to hear and its invoking of “reasonableness” as a standard for rulings on many issues. A compromise would necessarily curtail its ability to weigh in on anything it chooses, and to invoke the “reasonableness” argument. A simple majority of justices would no longer suffice to declare a piece of legislation unconstitutional — but a top concern of plan opponents, that the Knesset parliament could overturn a high court ruling with a simple majority, may be shelved.
Finally, any compromise would likely prevent the high court from weighing in on whether the ultra-Orthodox must serve in the military, which it’s done before.
Ultra-Orthodox men have been exempted from the military, and say they serve the nation through prayer and study. Taxpayer-funded stipends allow them to pursue that life, at the heart of a deepening divide between them and Israelis who serve in the military and pay for the subsidies.
Removing the court from the debate over military service would allow the ultra-Orthodox parties, keen advocates of the overhaul precisely because of the high court rulings, to back off. Yisrael Cohen, an ultra-Orthodox commentator, said the ultra-Orthodox “are uncomfortable being at the forefront of this fight,” and the most important thing is to avoid the draft.
One of the most striking results of the months of protest and turmoil is the sense that the 73-year-old Netanyahu, long considered a political magician, is losing his touch. Although he has presided over the country for 15 of the last 27 years and now heads the most right-wing religious government in the nation’s history, one-time allies say the Israeli leader, known as Bibi, mishandled this issue.
“What happened to you, Bibi?” asked Pini Badash, right-wing mayor of the southern town of Omer and a critic of the high court, in an interview on Channel 13 in mid-March about the legislation. “You’ve put us in an impossible situation.”
Things exploded late last month after Netanyahu fired his defense minister, Yoav Gallant, who’d called for a halt because of security concerns caused by reservists staying home in protest, and increased activity by Iranian-backed groups. Gallant is among the most experienced and respected members of his government, and pandemonium ensued after his firing, including a national strike that stopped outgoing flights.
Netanyahu was forced to order the legislative halt. Ultranationalist coalition partners, who’d threatened to leave the government if he didn’t pass the entire package by early April, also blinked. They’re still there. Moreover, the “fired” defense minister remains in place as trouble grows on the nation’s borders. The prime minister’s office said: “Due to the present security situation, the issue of firing the defense minister will be determined at a later date.”
And Netanyahu is now polling well behind opposition leader Benny Gantz as the best person for the job of prime minister.
All of these things suggest that compromise has a future.
On the other side, though, there are forces that will make consensus harder. One is the insistence of the plan’s backers that they won the election on this issue and they won’t let down their voters. A second is the newfound power of secular liberals, who until this issue arose had been sidelined in a country that has veered increasingly rightward. While some of them want to give the talks a chance, others believe they now have the power to drive Netanyahu and his partners from power.
As Aluf Benn, longtime editor-in-chief of the left-wing Haaretz newspaper, wrote on Sunday about Netanyahu, “Instead of saving him, the protests should focus on replacing the horrific government and saving the defenders of civil rights – the high court and the attorney general – from the hostile takeover.”
For Eugene Kontorovich, director of international law at the Jerusalem-based Kohelet Policy Forum, a conservative think tank pushing the judicial overhaul and advising the government, such talk makes the future look grim. He agrees there are people in opposition who want a compromise but says there are too many others who don’t.
“The country will be subject to anarchy, disruption and mob rule,” is his prediction.
And if not mob rule, then chaos, especially if the coalition pushes through the law on shifting judge selection to politicians. The Supreme Court would likely overturn that ruling and then there would be a genuine institutional crisis as security services would have to decide whether to side with the government or the court.
For the government to fail, as some on the left hope, five of its 64 legislators would have to abandon the coalition. That would mean new elections – the sixth in four years.
At the moment, it’s hard to imagine that happening. That means the sole way forward is the hardest — negotiated compromise. Otherwise, open conflict could be reignited.
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(With assistance from Marissa Newman, Gwen Ackerman and Amy Teibel.)
