Israel’s Pot is Simmering

By Steve Kramer

KFAR SABA, Israel — Israel’s Knesset is on its summer recess and won’t reconvene until after the Jewish holidays in October. There are several very important, unresolved issues that are simmering. They are: the fate of the reasonableness factor in making Supreme Court decisions  (and subsequent to that, the composition of the committee to select new Supreme Court justices), the law pertaining to the army service of full-time yeshiva students, and ultimately the future of the current right wing government. Also simmering is the protracted trial of Prime Minister Benjamin Netanyahu.

The “reasonableness standard” was created in the 1990s by activist justice Aharon Barak. It was commonly used by Israeli judges to arbitrarily (according to the judge’s inclination) determine the “constitutionality” or lawfulness of a given law. The newly amended law curtails some of its former arbitrariness and strips the Supreme Court of the power to negate Knesset legislation because “unreasonableness.” Previously, most people were in favor of some amendment to the Basic Law on Reasonableness. Now, however, the amended version has been labeled “undemocratic.”

Chief Justice Esther Hayut has called for a hearing on September 12 with all 15 justices, itself unprecedented, to decide whether to approve or throw out the Knesset’s decision on reasonableness. This is dicey because the act in question was devised by the Court back in the 1990s as a sort of constitutional law. If the Court overturns the Knesset changes, it will be responsible for fundamentally elevating itself (an unelected group of judges with the power to veto new members of the court) over Israel’s parliament of elected officials. This would be the “crowning achievement” of Justice Hayut, who is retiring at the mandated age of 67.

There have been many mass protests against the coalition’s attempts to democratize the judicial system. The protestors proclaim that they are the ones to save Israel’s democracy while government supporters, who vehemently proclaim the opposite, are accused of turning Israel into a dictatorship. Where is this dichotomy coming from?

In a recent Twitter (X) post, Israel’s Public Diplomacy Minister Galit Distel Atbaryan (Likud party) explained former prime minister Ehud Barak’s detailed “master plan” for creating civil unrest in a future coalition: She wrote, “[Barak’s] plan included deliberately inflaming the civilian population, creating a false representation of a danger to democracy, and bankrolling protests, including purchasing flags.”

This description precisely describes the present protests against legal reform, which were not controversial ahead of the election of the current government. In her Twitter post, the Likud lawmaker Atbaryan describes a taped interview with Barak from July 2020 on Forum 555 (a group of retired pilots and navigators) where he presented his plan to accuse the government of being anti-democratic. He also said that should Netanyahu somehow disappear from the scene, and should Israel’s situation worsen on various fronts, that “I am more suitable and prepared than any other person in the country to take the wheel.” (Source)

This reminds me of the false charge that then Likud leader Ariel Sharon provoked the Al Aksa Intifada by going up to the Temple Mount on 9/28/2000. In fact, the uprising was planned well in advance by Yasser Arafat, then leader of the Palestinian Authority/PLO. Its goal was to overturn the Israeli government. Similarly, Ehud Barak and his cohort planned, and then waited for the opportune time, to attempt an overthrow the Netanyahu-led government. The coalitions’ plans to amend the judiciary became the perfect excuse to put their plan into motion.

I have to admit that Barak’s plans have worked beautifully for the opposition, convincing adherents that an unelected Court is more democratic than an elected parliament! Among the objectors there are even Israeli doctors saying that they want to emigrate to New Zealand to escape the “fall of democracy” here. In their ignorance, they don’t even realize that the New Zealand Supreme Court has the same, or worse, attributes that they are opposing here in Israel. (Source)

Next, the drafting, or exemption from serving, of Yeshiva students is a perennial problem. What started in 1948 with Prime Minister David Ben-Gurion exempting several hundred yeshiva students from military service has burgeoned to thousands of exemptions annually. Every law that the Knesset has passed to find a solution has been overturned by the Supreme Court – not always without reason. Actually, the IDF has done pretty well without the relatively unschooled Torah “scholars,” who are mostly forbidden by their rabbis to learn practical subjects such as math and English.

Nevertheless, there are ultra-Orthodox (Haredi) volunteer soldiers currently serving. “About 1,000 Haredi men enter the IDF each year, the majority of whom do not serve in combat. Yet for the 200 or so who do elect for a more physical service, the IDF created three units designed to cater specifically to the ultra-Orthodox population: Kfir’s Netzach Yehuda Battalion, Givati’s Tomer Company, and the Paratrooper’s Chetz Company, the newest of the three.” (Source)

The third controversy is the seemingly endless trial of Prime Minister Netanyahu. The Attorney General, who is a civil servant and serves as legal counsel for the Government and public authorities, directs the state prosecution against the prime minister as well as reviews proposed legislation. Attorney General Gali Baharav-Miara was appointed during the previous government of Ya’ir Lapid, who is one of the most vociferous opponents fighting the reform of the Supreme Court (although he supported changes previously). Baharav-Miara seems to have a particular animus towards the prime minister.

Bibi was indicted in November 2019 after many years of investigations and charges. (One was for purchasing too much ice cream for the Prime Minister’s Residence and another was over returnable bottle deposits.) There are currently three cases against him, with one more serious than the others. Surprisingly, the witnesses brought forward by the prosecution against Bibi have mostly been supportive of the Prime Minister, leading to the request of the prosecution to treat their own witnesses as defense witnesses!

The three justices hearing the case recently issued a statement saying they had told the prosecution and defense that they believed there were difficulties establishing the bribery offense, the most serious charge.  “‘Based on these difficulties, it was suggested that the state consider retracting the bribery charge,’ the judges said at the time, while noting that ‘these comments were being made with the necessary caution.’ It was also reported that they suggested the prosecution seek a plea bargain with the defense.” (Source)

Attorney General Gali Baharav-Miara has rejected the advice of the justices and the case will continue. Is this a witch hunt or a serious trial? One of the three indictments is a unique charge that has never, ever, been declared a crime in any court. Such is the power of the Establishment in attempting to overthrow the coalition.

ForeignPolicy.com, not a right leaning organization, admits that the current opposition against judicial reform is fundamentally, “a revolt by the establishment against a populist right, a situation not very different from what developed in the United States during the Trump years.” (Source)

In my opinion – and many others – that is the plain truth. The demonstrators against judicial reform may not realize it, but the Establishment of Israel, mainly by leftist Ashkenazi Jews of European descent, are loath to give up the power that has been theirs since before Israel’s independence in 1948. Even though many of the demonstrators are more Mizrahi (descendants of Jews from Arab countries) than Ashkenazi, they have been convinced that the current government is illegitimate and that Prime Minister Netanyahu is a crook who must be “deposed.” Even though mostly right-leaning governments have been in power since 1979, the Establishment is still running many things behind the scenes: culture, media, universities, big business, etc. Hopefully, after the Jewish holidays most of the simmering issues will be resolved.

Note: For the last five years I’ve volunteered in a program to have weekly English language conversations with small groups of high school students here in Kfar Saba. I often ask where their grandparents came from. I’ve noticed that the majority have grandparents from all over the map, often from different continents. These kids are all mixed together, with no labels separating them. It gives me hope that the class divide among their elders is on the way out. (Unfortunately, few Israeli Ethiopian students attend the academic school where I volunteer. But progress is being made.)

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Steve Kramer is a freelance writer based in Kfar Saba. He may be contacted via steve.kramer@sdjewishworld.com