On July 24, Knesset legislators approved the first Bill in a package of upcoming judicial reforms, nullifying the ‘reasonability’ clause in a 64-0 vote, after the 56 members of the Opposition boycotted the vote. Leading up to the vote, protests reached a boiling point outside the Knesset, as protest leaders declared that they had blocked all entrances to the Parliament compound and wouldn’t allow the vote, a claim immediately denied by the Israel Police.
The reasonability clause was legal terminology introduced in its current form to the Israeli Supreme Court by Justice Aharon Barak to strike down administrative decisions deemed beyond the pale in terms of reasonable judgement, even if they did not contradict any written letter of law. A parallel legal clause exists in England and Singapore.
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Critics deemed this an aggravated judicial overreach, as judges could thus declare Ministers incapable of decision-making. Two noted critics, Justice Noam Solberg and Justice Alex Stein, currently sit on the Supreme Court. Most of the legal establishment uncompromisingly rejects the legal reform proposals in their current form.
After voting, Minister of Finance Bezalel Smotrich issued a statement denouncing the protesters: “This was a violent siege on the Knesset, an attempt to prevent Members of Knesset (MK) from fulfilling their legal right and duty to vote. This was not an expression of democracy; it was our moment of storming Capitol Hill… The Left is not democratic for a long time now, and the Right is attempting to restore democracy to Israel.”
After the Bill passed, more angry protesters took to the streets, blocking causeways in Tel Aviv and central junctions countrywide.
In Kfar Saba, an angry driver accelerated and ploughed through a group of protesters that was blocking his route, injuring three. In another viral video, a young mother shouted at protesters blocking her car. Moments later, they had shattered her back windshield over her three little children in the backseat.
At night, Israel Medical Association declared a doctor’s strike for the next day, citing concerns of political intervention in their work. Labour Court dismissed the concerns as theoretical and issued an order to promptly end the strike. Israel’s labour laws stipulate that workers are required to provide a two-week notice prior to exercising their right to strike. The strike, which begun in the morning and stretched on for seven hours, left patients — who had major medical procedures postponed indefinitely after waiting in queue for months — reportedly furious.
All major newspapers featured a black front page on Tuesday morning. The small print stated that it was an ad paid for by hi-tech industry leaders.
The hardest blow landed with the evening, as Moody’s Investors Services issued a special report downgrading Israel’s economic forecast from Positive to Stable, citing the reforms as a sign that “Israel’s governance has deteriorated”. Concerns included risk of a constitutional crisis between the executive and judiciary, and possible security risks due to threats from pilots to stop reporting for training.
Game of cat and mouse
Dr. Yehudah Yifrah, legal correspondent at the Makor Rishon weekly, pointed out that the Bill passed on Monday will probably have no effect on the Supreme Court. In a recent verdict, Chief Justice Esther Hayut invoked the “Test of Narrow Proportionality” in a manner identical to Reasonability. In short, the game of cat and mouse between the judiciary and the executive will continue unhindered.
The reason the government began legislating the sweeping reforms with the reasonability clause is because it was deemed negligible. — Chief Justice Barak is on record saying, in an interview with Mr. Yifrah from 2019, that he saw no problem in modifying it. Opposition leader MK Yair Lapid had stated the same from the Knesset podium. However, both voiced uncompromising opposition to any reforms.
Justice Minister Yariv Levin and MK Simha Rothman introduced the reform proposals after the January elections. Both have been writing with strong conviction against ever-increasing judicial overreach since its historical moment of conception when, in 1992, Chief Justice Barak declared his “constitutional revolution”, implying that Israel had a judiciable constitution even if no official constitution was ever drafted.
Mr. Levin’s reforms were drafted in cooperation with the Kohelet Policy Forum, whose mission statement supports “individual liberty and free-markets, [and] Israel as the nation-state of the Jewish people and representative democracy”.
Another faction supports reforms out of personal or communal interest. These are the ultra-Orthodox, who view the Supreme Court as a bastion of militant secularism dedicated to destroying their lifestyle. Their immediate concern was the court’s prolonged effort to annul their exemption from mandatory conscription. Equally conspicuous are individuals like MK David Amsalem, whose priority is to unshackle legal constraints on extensive cronyism in senior public office.
Support for protests
Anti-reform leadership is personified by Shikma Bressler, a particle physicist and member of the ‘Black Flags’ political activists who organised attempts to topple PM Benjamin Netanyahu’s 2020 government. When the reforms appeared, her movement rebranded itself with a dramatic escalation in rhetoric. She tweets regularly about mass no-show ultimatums among fighter pilots and elite tech units, claims which Israel Defense Forces (IDF) spokesmen say are false. The protests do enjoy widespread support from multiple sectors in Israel. Numerous former security establishment leaders, as well as a majority of the economic and academic establishment, have thrown their weight behind the cause.
Ms. Bressler’s cohorts are powerful elites who view themselves as high performers supporting the backward, unproductive sectors who support the Netanyahu government. Mr. Netanyahu’s voters see them as an extractive elite running an unaccountable deep state. They point to the fact that no anti-reform protester has been prosecuted as proof that they are held to be above the law.
Protests escalated rapidly, blocking major traffic arteries, train tracks and, briefly, even Israel’s only international airport. Slogans decried the “End of Democracy” and “Dictatorship”, and weekly “Disruption Day” protests swept up mainstream leftists who genuinely believe that the Supreme Court is the last line of defence for civil liberties they hold dear.
‘No compromise’
Some, like Ms. Bressler, are ardent secularists for whom the court embodies a civil religion. Their choice slogans warn of theocracy. And compromise is considered blasphemy. This mindset is one reason that high-profile attempts at compromise have failed, as opposition parliamentarians can’t be seen as negotiating catastrophe.
The passionate demonstrators firmly believe their efforts will see their names being etched in the annals of history as the saviours of Israeli democracy. However, many disagree with the protest’s ends and means.
Assaf Malach is a political philosopher organising academics who support the reforms. This led to a public feud with a leading Israeli sociologist declaring that Mr. Malach was “no longer my brother but my enemy”.
As the Bill passed, Mr. Malach posted on Facebook about his dissolution with protesters: “The Left is in state of aggressive, violent psychosis… Endangering the IDF and national defence for reasons not remotely connected to any doctrine of conscientious objection on the Left or Right… Doctors abandoning patients… People knowingly and intentionally harming the Israeli economy… Any legitimate fears can’t justify this anti-democratic behaviour… Their claims are primarily a rationalisation of anguish over their historical loss of control of selected bastions of power and losing the elections.”