Next week, on Tisha B’Av, the ninth day of the Jewish month of Av, the people of Israel will commemorate the destruction of the Jewish Temple in Jerusalem. This concludes the three weeks of mourning we are currently in. If we don’t pull ourselves together, we will also destroy our “third house” of Israel. At the moment it looks like neither side will win. The coalition will succeed in implementing some reform and the opposition will ensure that a separation of powers remains, as is appropriate in the democratic system.
Tisha B’Av recalls the tragic consequences of civil war among the people of Israel. Next week, the governing coalition plans to pass the first part of the judicial reform. If the legislation regarding the “reasonableness” clause is implemented in its current form, massive protests will erupt. Fundamental agreements of Israeli society will fall. The covenant of destiny that unites us will be broken and beyond healing.
Israel’s elite commando unit Sayeret Matkal is split into two camps. Some 400 elite reservists signed with trembling hands a petition that they would step down if the law passed. Another group from the same unit declared they will continue to serve. What is going on in this elite force, where both Israeli Prime Minister Benjamin Netanyahu and his fiercest opponent Ehud Barak both served, is a microcosm of the larger process Israeli society is going through. Pilots, doctors, business leaders, the country’s pioneers and defenders threaten an explosion if the bills pass. Our beloved Israel is being torn apart. Bibi and Ehud used to be best friends.
“About four months ago, a group of professors, convened under the auspices of the President, put forward a joint blueprint for all areas of judicial reform, with the idea that the legal system should be corrected, not smashed. The balance of powers between the legislative, executive and judiciary must be maintained without harming Israel’s democratic foundations,” said Prof. Yedidia Stern, vice president for research at the Israel Democracy Institute, where he runs the Religion and State, as well as the Human Rights and Judaism projects. He is a professor at Bar-Ilan University Law School and served as its dean. “During the talks we agreed on most of the details of the proposal, but then everything fell apart and the situation has escalated ever since. The streets are in chaos, bad blood fuels extreme dialogue, and almost everyone is anti-brother. An agreement is urgently needed to save us from the abyss.”
The opponents of reform have to accept that 64 members of the Knesset were elected less than a year ago and support the judicial reform. On the other hand, the initiators of the reform must take into account the polls that show that the majority does not support the reform in its current form. The partially correct allegation of injustice in the past must not lead to new injustice in the present. On the other hand, the government must not abandon all of its proposed legislation just because reservists and protesters veto it. At the same time, the government has to limit its reforms in order to maintain an intact democratic structure.
According to Prof. Stern, this proposal represents a significant change in the existing situation because it immunizes the government’s decisions in the plenary against criticism of their appropriateness, as well as government decisions on nominations, for which the approval of the Knesset is required. Therein lies a clear regulatory logic: In principle, the judiciary remains authorized to examine the appropriateness of decisions by the holders of executive power in Israel.
However, if the discretionary power is exercised by the elected body at the head of the executive branch, the government, or if it is a nomination that requires the approval of the legislature, the Knesset, the judiciary will not review appropriateness. In this way the law will express a proper relationship between the three powers. Of course, in any case, the judiciary can still review the government’s decisions against the other known discretionary grounds, of which, as is well known, there are many.
The opposition will now find it difficult to accept this proposal for fear of setting a precedent after which the coalition will try to unilaterally continue the reform process. The coalition, and in particular the prime minister, must make their intentions clear and make an unequivocal commitment that they will not allow further judicial reforms in this legislature without a broader agreement on the coalition’s current boundaries (64), i.e. a parliamentary majority of around 70 members of the Knesset, is achieved.
According to the proposal, neither party will defeat its opponent. The coalition will more or less succeed in bringing about some change in the separation of powers, and the opposition will succeed in maintaining the separation between the authorities required by the democratic system. All parties must be aware, even if they are convinced of their correctness, that a unilateral victory will be short-lived and prove Pyrrhic. No one can win, there must be a tie to avoid literal chaos and the destruction of Israel. Success that has been bought too dearly is ultimately a loss for both sides. The victor will emerge from the conflict just as weakened as the vanquished and unable to take advantage of the victory.
After the destruction of two temples and 2,000 years of exile, we returned to our homeland and founded an independent and vibrant Jewish and democratic state. Sons and daughters from families on all sides of the current debate fell upon the altar of its founding. For their sake alone we must not risk a third destruction.
Prof. Stern concludes: “If both parties, coalition and opposition, recognize the danger for Israel and agree on this compromise proposal, albeit not happily, but with the understanding that there is no other better choice, then next Tisha B ‘Av we can say that we’ve learned from history and will not repeat the mistakes of our ancestors.”
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