By Sarah L, Staff Writer

Since January, hundreds of thousands of Israelis have turned out every week to protest the passing of controversial legislation which is intended to rein in a Supreme Court seen by proponents of the reform as partisan and interventionist. Defenders of the status quo believe that the reform would take the government too far in the opposite direction – in other words, instead of an interventionist court, Israel’s court would be crippled, subject to the whims of possibly extremist politicians.

What exactly is this judicial reform and why has it become so controversial?

The basic claim of the government is that the separation of powers in the Israeli governmental system is imbalanced. On the other side, people argue that the Supreme Court – the target of the judicial reform legislature – is one of the only checks on the power of the executive branch and thus is necessary for maintaining a balanced democracy.

The bottom line is that the division of powers between Israel’s executive, legislative and judicial branches is very unclear.

The Knesset (legislature) is in fact the weakest branch of Israeli government. It is subject to both the sitting government, which is made up of Members of Knesset and holds a Knesset majority, and the Supreme Court, which can strike down laws it deems “extremely unreasonable.” (It is important to note that while the so-called “reasonableness standard” is currently in the spotlight, it is only one of more than nine standards by which the court can strike down legislation and has also only been in place in its current form and application since the 1990s. Other applicable SC mechanisms include the standard of discrimination and the standard of moderation.)¹

The government set out to right this imbalance of powers, but unfortunately, did not present a holistic solution. The bill addressed the overreach of the Supreme Court but failed to recognize the Knesset’s dependence on the sitting government. Weakening the Supreme Court without strengthening the separation between the government and the Knesset essentially consolidates too much power in the sitting government.

To many Israelis, this bill looked like the first step on a dangerous path towards an un-democratic regime.

To others, the legislation on the table was long overdue and simply returned legislative power to its proper place – the Knesset.

The issue quickly became one of the most explosive and controversial in Israeli history. Media outlets and politicians poured gasoline on the fire, and within a few short weeks of the government’s being sworn in, hundreds of thousands were turning out in protest. The legislation went on hold between March and June while lawmakers negotiated, but the respite was short-lived.

When the negotiations collapsed in June, the government began advancing the reform again, aiming to limit the use of the “reasonableness” standard. Over the July weekend preceding the vote, thousands of Israelis marched through a heat wave from Tel Aviv to Jerusalem to protest outside the Knesset building. The bill passed unilaterally despite being boycotted by the Opposition.

In September, the Supreme Court will rule on the newly passed legislation limiting their own use of the “reasonableness” standard. No one can pretend that their ruling in this case will be objective, and it places the country in an unprecedented and dangerous situation.

Meanwhile, the Knesset finished its summer session – apparently unconcerned by the tumult it has caused in the nation for which it is responsible – and has begun a two-month legislative recess, which is likely the calm before another storm.

The Knesset and the Supreme Court are on a collision course, taking the whole country with them.

The debate over the reform has impacted nearly every area in Israeli life. A recent report found that some 68% of Israeli start-ups have begun relocating their assets abroad. Medical professionals, deeply concerned that the medical system will be harmed by the reform, are also discussing relocating to countries outside of Israel. Finally, major stock exchange platforms such as the Standard & Poor report that Israel’s economic growth will be materially hurt by the reform, at least in the medium-term.² The long-term economic consequences remain unclear.

While the issue of judicial reform is serious in its own right, the conflict is also rooted in a deep fear that, having consolidated power, the largely religious government will begin expanding the enforcement of religious observance on non-religious Israelis and those of other faiths. This underlying conflict over the role of religion in the public sphere is deadly, and while not new, has slowly become more divisive as the religious community in Israel grows and becomes more influential.³

Here it is important to point out that Israel is already a fairly religious state by Western standards. There is no separation of “synagogue” and state in Israel and many government laws are already based on religious Judaism. The current status quo is not necessarily bad, but it is frustrating and inconvenient for the secular and traditional population and has been for a long time. For this reason, the concerns of the protesters are understandable.

However, at the end of the day, most Israelis – left and right, religious and secular, in favor of or in opposition to the reform – would like to find middle ground and return to normalcy. Despite this, the path to compromise remains in the hands of leaders who point fingers at each other and continue to find problems, each convinced by extremists on their own side that they are within the bounds of reason. Until there is a paradigm shift in the Knesset, a solution will remain elusive.

In conclusion, yes there is an imbalance of power in the Israeli system, and yes this should be corrected. Whether the current legislation is balanced or not is up for debate. However, it should certainly not be passed in a way that alienates half the population! At this point, the million-dollar question is whether the Knesset and the Supreme Court will find middle ground, and what will happen if they don’t?

And beyond the conflict at hand, regardless of who is “right,” the bigger issue that has surfaced here is not judicial; it is an issue of where Israel is going culturally and what Israelis will do in a situation in which they feel that their lifestyle and values are threatened.

Bibliography:

¹Shahar, Roi. “Submitting a Petition to the High Court.” Din.co.il, 11 Aug. 2010. Accessed 2 Aug. 2023.

²“S&P: Judicial Reform Controversy Will Continue to Harm Israeli Economy.” The Jerusalem Post | JPost.com, www.jpost.com/business-and-innovation/all-news/article-752801. Accessed 3 Aug. 2023.

³Wikipedia Contributors. “Religion in Israel.” Wikipedia, Wikimedia Foundation, 26 Feb. 2019, en.wikipedia.org/wiki/Religion_in_Israel.