Why a Judicial Compromise is Important No Matter the Content

The specifics of the Netanyahu government’s judicial overhaul proposals have hundreds of thousands of Israelis in the streets, and I have written at length about why I find the details of Yariv Levin’s and Simcha Rothman’s plans so alarming. Yet there is another element of the battle taking place to refashion the balance of power between Israeli governments and Israeli courts that presents a threat to the long-term health of Israeli democracy and governance, and it has nothing to do with what is actually being proposed. It is not a substantive threat but a procedural one, and its roots do not lie with the current Netanyahu government or even with the judicial overhaul issue at all. The threat is that successive Israeli governments have treated the structure of state institutions as a political issue to be overcome like any other political issue, and this attitude risks undermining Israel’s basic ability to function.

The first sign that something was badly amiss was during the negotiations between Binyamin Netanyahu and Benny Gantz following the third election. Joining with Netanyahu following three elections in which Gantz was positioned as the prime anti-Netanyahu standard bearer—and during which his Blue and White party kept pace or even bested Netanyahu’s Likud—meant that Gantz needed some guarantee that he was not simply joining a Netanyahu government as a junior partner. In addition, Netanyahu needed a way to remain in government even if he was not prime minister due to the requirement that any other minister must resign while under indictment. Thus was born the new position of alternate prime minister, giving Gantz some measure of statutory authority while awaiting his turn in the promised prime ministerial rotation and giving Netanyahu a mechanism preventing his required resignation following Gantz assuming the prime minister’s chair. In order to do this, Israel’s Basic Law: Government had to be amended providing for this new position and laying out its responsibilities; changing the language of the prime minister’s oath of office; setting up new statutory lines of authority for the prime minister and alternate prime minister delineating which ministers were answerable to whom; and perhaps most critically applying the restrictions against investigating, indicting, and removing a prime minister to the alternate prime minister as well. This all meant that Israel’s “unconstitution”—which is the role played by Basic Laws—was amended and Israel’s governmental structure was changed by a routine Knesset majority, all to solve a short-term political problem.

The Netanyahu-Gantz government was short-lived, not only expiring before Gantz’s turn as prime minister but before it could even fulfill its most basic duty of passing a budget. Yet the massive structural change in Israel’s system of government that happened effectively overnight lived on, and was used again following the next election in order to solve the next political problem. This time it was Yair Lapid who needed the alternate prime minister mechanism that had just been created in order to convince Naftali Bennett to jump ship from the Netanyahu camp and form the first non-Netanyahu government in a dozen years. Despite the fact that the non-Netanyahu camp—led by Lapid—had rightly and vociferously objected to the creation of the alternate prime minister position and upending Israel’s governmental structure in order to get around a political dilemma, now that the position already existed, it was too tempting not to use. So Lapid and Bennett utilized the same fix in order to form their government, and Israel’s new two-headed prime ministerial Frankenstein monster lived on.

The problem was not that an alternate prime minister controlling his or her own set of ministers and possessing the same rights as the prime minister is an inherently illegitimate or absurd position. The problem was that people on both sides of the political divide had no compunctions about changing the way in which Israel is governed without thinking through the issue, extensively debating it, working to get societal buy-in, or forming a relative consensus within different political camps. Perhaps worse, all of these elements were bypassed not because of some emergency and not because anyone thought Israel was ungovernable under the existing system, but rather because it was politically expedient to do so and it allowed two politicians at odds to close a purely political bargain between them. It established a standard that the structure and institutions of the state can be treated no differently than ordinary policy or political stumbling blocks, meant to be easily malleable and easily trifled with.

This sets the stage for what we are observing unfold now, which is the government seeking to upend the current system that defines the powers of the government and Knesset relative to the judiciary in the most accelerated manner possible and as if this is a regular policy issue. The government’s initial stance was to ram these changes through irrespective of any objections, and as the political heat and societal protests have steadily increased, there are now calls to stop the process for a few days, maybe even a couple of weeks, and if that yields no consensus, then to just keep on going. Leaving aside any and all merits and downsides to the elements of the judicial overhaul, this is quite plainly a recipe for disaster. Much as the hastily-conceived alternate prime minister “solution,” changes this fundamental should not be taken lightly and certainly not with the lightning speed and polarizing nature that has characterized this process so far. The proposals themselves could be the smartest, fairest, most moderate set of reforms to ever have been conceived, and it would still be a monumental mistake to enact them with this type of process. It only furthers the idea that the foundations of how Israel is run are not that important, that they can be rethought and reshaped at the drop of a hat, that ultimately nothing matters beyond what is convenient in the current moment.

One possibility with this mindset is that massive changes whose implications were not really thought out will live on through inertia or because the next people in power will find them beneficial too, such as happened with the alternate prime minister. Another is that revolutionary changes will be carried out that transform Israel’s entire political system, and when a new government is in power, it will quickly reverse them and restore the status quo ante. This will seem like a positive development to those who opposed the changes, but it will cement a cycle of whiplash in which the way in which the country is run transforms with every shift in government, and in the blink of an eye Israel becomes a country in which nothing works because there is no consistency or permanence to the very foundations of government and law.

It is for this reason that some form of broad and consensual compromise is critical. If everyone were to somehow suddenly agree that the current government proposals are actually the wise course, I would still be alarmed about Israel’s immediate metamorphosis into a hollow majoritarian democracy, but I would not be concerned about Israel’s ability to exist as a functioning state. The substance of the judicial overhaul is one problem, and the procedure by which it is taking place is a wholly separate problem. It is why a process where everyone on both sides slows down, has a genuine discussion about what makes sense and what can garner the broadest support, thinks through the full implications of each proposal, and then comes up with reforms that emerge from these debates and discussions is so vital, irrespective of whatever those reforms actually are.