A Saudi deal would be a gamechanger on judicial reform

It would be some sort of irony if President Biden was to provide Prime Minister Netanyahu with a pathway out of his current situation. If that does happen and that is a big if, Biden will have done it for his own domestic political reasons, not for Netanyahu’s, but who would never the less, likely be a significant beneficiary.

Biden’s concerns are limiting China’s involvement in the Middle East and trying to be the president who brought the chances for a two-state outcome closer to reality, in time for his re-election bid.

Netanyahu’s focus has always been on protecting Israel from Iran and bringing Israel overtly nearer to Saudi Arabia.

The key for both Biden and Netanyahu is Saudi Arabia.

Judicial reform is something Netanyahu was not unhappy to see, but is being driven by some of his coalition partners and elements of Likud. Now, he would be happier to see the reforms out of the way.

There is a lot of noise around a potential deal with Saudi Arabia.

It seems as if their prime concern revolves around their own security, seeking a defence pact with the USA, as well as some civilian use nuclear capability.

The Saudi’s need to go some distance along the way to be seen to be looking after Palestinian interests. How far, we do not yet know.

When Netanyahu was asked by Bloomberg News what was being said about Palestinians in his discussions with the Saudi’s he replied, “a lot less than you think.”

As an initial step the Saudi’s last week appointed their first ever ambassador to the Palestinians.

A deal with Saudi Arabia has the potential to reinstate or bolster Netanyahu’s leadership status, redraw his coalition and lose the albatross around his neck that judicial reform has become.

The anti-reform protests in Israel continue apace.

However, as discussed in previous pieces, at its core this is more about demography and trust, or the lack of it, than any actual specific law.

Whether it is recognised or not, the current and suggested future pieces of legislation are a watered-down version of whatever was originally contemplated.

The protesters have been much more successful than the opposition led by Lapid, in the attempted compromise talks under the auspices of President Herzog.

The protests themselves are about the Jewish and democratic future of the state, with different elements within the protestors pushing for different things – some for change and/or moderation of the judicial reforms looking to the High Court to protect their values; and some stridently antigovernment, wanting to replace the elected government.

In another irony, some of the protestors are looking to remove Netanyahu, whilst others are hoping for the ‘real Bibi’ to step forward and ‘rescue the country’ from his coalition partners.

Whatever the rights and wrongs of the protest movement, one dangerous precedent has been set by a large segment of them.

What is to stop a future opposition from promoting army service refusal, if for example, they oppose settlement evacuations or Oslo style deals being made by a different future government?

Or because of any other policy?

Protests are a valid part of democracy of course, but service in the IDF should be sacrosanct. Israel’s security depends on it.

The government is likewise also not homogenous on judicial reform and is largely made up of four groupings, each with different aims and priorities:

– Haredi interest is their army draft exemption law. Beyond that, their aims are relatively limited. Indeed, they generally consider the judicial reforms as counterproductive to their interests, shining too bright a light on their attempts to secure army exemption and being too divisive generally,

– the religious messianists, whose twin aims are to move the dial more towards the Jewishness of the state and to end any illusion of a two-state option. They do not want the High Court to be able to override the Knesset’s will,

– the Likudniks who support the maximum judicial reform, led by Yariv Levin, who are relatively few in number,

– and the Likudniks who want more moderate judicial reform and in a slower and greater consensus way, including MK’s like Yuli Edelstein and Nir Barkat. Largely silent and intimidated by their own coalition, and who all still voted in favour of the latest judicial reform law.

The reasonableness test was a curious, unusual, unique and subjective part of the Court’s armamentarium.

Yet again however, the trust factor for supporters and detractors comes into play. Those who trust the elected majority to decide whilst protecting minority rights and on the other hand, those who trust in the appointed judges, to be a brake on anything ‘unreasonable’ from the Knesset or its members.

Netanyahu has publicly stated in foreign press interviews, that the law to remove ‘reasonableness’ and future legislation on the makeup of the panel selecting the High Court judges “will be enough.”

This brings us to the two flashpoints – reviewing this law itself and then how to select the judges that have to rule on future matters.

The first real crunch in terms of the potential clash between the Court and the Knesset will come on the 12^th of September, just before Rosh Hashana, when Chief Justice Esther Hayut, has called, for the first time ever, all of the fifteen High Court judges to hear petitions against the new law.

This way, the opinions and rulings of the entire High Court will be known.

Israel, having no constitution, relies on a series of Basic Laws, passed by the Knesset, which are considered to be quasi constitutional.

The law removing ‘reasonableness’ is part of a Basic Law.

To date, whilst the Court has reserved to itself the right to overturn a Basic Law, it has never actually done so.

Should the Court overturn this law, then the government will need to decide if it abides by the Court’s ruling, or whether it believes that the Court does not have the power to overturn a Basic Law.

The potential for a constitutional crisis is real.

Israel will be in completely uncharted territory, with existential questions on what type of democracy Israel is; on where the balance is, or should be, between an elected government and the checks on it?

And on whose orders the organs of the State follow?

Because it is the judges who obviously make decisions on behalf of the High Court, how they are selected and by whom, can be critical. So, when Netanyahu says that changing the selection panel will be enough, that can have huge ramifications, depending on what the changes are.

Currently the nine-member Judicial Selection Committee consists of two Government ministers, two Knesset members (usually one from the Government and one from the Opposition), three High Court justices and two lawyers from the Israel Bar Association.

High Court appointments require a majority of seven.

Of the fifteen High Court judges, ten were appointed during Netanyahu’s terms as Prime Minister and some four of these, whilst Ayelet Shaked was Justice Minister.

With a compulsory retirement age of 70, Chief Justice Hayut will be retiring in October making the method of judge selection an even more immediate issue.

A Saudi deal would be a gamechanger on judicial reform and possibly a national unity government.

However, even in the absence of such a deal, the sustained nature of the protests, the damage done to the IDF and internal coalition disquiet, will probably further modify government plans, or cause an ill-defined delay.

If that happens, the question is whether and how quickly Israel can return to ‘normal’ or where the ‘new normal’ will be?

Israel has faced trying internal times before and recovered and strengthened, there is no reason to believe she cannot do so again.

Ron Weiser is the Honorary Life Member ZFA Executive and Honorary Life President, State Zionist Council of NSW