Trust judicial reform? Trust Palestinians? Trust Netanyahu?

‘Trust’ is the key word that applies to three areas of importance that are front and centre for Israel currently – judicial reform, the Palestinians and Prime Minister Netanyahu.

Pro and anti-judicial reform is essentially about the balance between the Knesset and the High Court and the limits, or otherwise, of the powers of each.

It is not about whether Israel will continue to be a democracy or not, she will.

It is rather about how Israel’s democracy can best operate and to reflect the will of the people, the majority and the minorities. As well as how that will be best determined.

Neither side of this deep division trust that the other’s motives are about enhancing or improving the democratic balance.

As some commentators have noted, currently Israel’s High Court has more power than the equivalent courts in any other democracy.

By the same token, had all of the original judicial reform proposals come to pass, it would have left Israel’s High Court being the weakest.

This explains why there is broad support for judicial reform but to a point.

The matter of trust underlies all talk of judicial reform.

The reality is that since its election late in 2022, if we put to one side the ‘Incapacitation Law’ which is in a somewhat different vein, the government has managed to pass only one law in its judicial reform agenda, the removal of the so-called ‘Reasonableness Law.’

This was challenged and heard via a full bench, all 15 judges, sitting last week.

In itself a unique happening.

When the Court’s decision comes, it may trigger a constitutional crisis should the High Court choose to strike down this Basic Law.

In the Court hearing on September 12th, Chief Justice Hayut expressed the view that the Court does have the power to strike down a quasi-constitutional Basic Law (something, however, it has never done) but said: “There needs to be a mortal blow to democracy to justify striking down a Basic Law”.

Ultimately, the judgement may turn on whether this ‘Reasonableness Law’ removal is regarded as a ‘mortal blow to democracy’ or not. In and of itself, especially in isolation, it is hard to interpret this one law as that, but we will have to wait and see.

The same battle between these two parts of Israel’s democratic makeup and system of checks and balances, is taking place over the Judicial Selection Committee – who, by and how should judges be chosen?

The two elements being disputed are lawmaking itself and how judges will be selected to determine the validity of those laws. They are serious matters and the trust deficit is magnifying the divides.

Unfortunately, as with most everything else that is taking place in Israel, judicial reform and the distrust it engenders, so dominates the political discourse, that there is little oxygen left for other matters of state.

It is now 30 years since Oslo I, an agreement between Israel and the Palestinians, which was passed by the Knesset in 1993 via a vote of confidence in the then government, 61 in favour with 50 against.

Then, on the 6^th of October 1995, Oslo II was passed by 61 to 59.

Such momentous decisions, it should be noted, with just 61 in favour both times.

As much as Sadat’s flight to Jerusalem in November of 1977 to address the Knesset engendered the trust that paved the way for the peace deal between Israel and Egypt, Abass’ recent antisemitic comments reinforced for all Israel, unfortunately once again, that there could be no trust in Abbas or his leadership.

In late August, Mahmoud Abbas addressed the Fatah Revolutionary Council in well-reported remarks, where he said: “They say that Hitler killed the Jews because they were Jews and that Europe hated the Jews because they were Jews. Not true. It was clearly explained that they fought the Jews because of their social role, and not their religion. They fought against these people because of their role in society, which had to do with usury, money and so on and so forth.”

In a disconnect that defies logic, whilst Abbas’ comments were condemned around the world on the one hand, Israel’s friends and allies still expect that Israel will do business with and trust in someone who remains a Holocaust denier and expresses deeply antisemitic views.

In this reality, the big question facing Israel in light of the situation where one cannot trust in Mahmoud Abbas, is what should Israel do in the current circumstances for the good of Israel?

This dilemma has even more urgency against the background of any potential Saudi-Israel rapprochement which should it occur, will probably require some big decisions on the Palestinian and territorial questions.

A discussion not currently taking place.

In the United States at the moment, amongst Prime Minister Netanyahu’s other duties, he met with Elon Musk, the owner of X (previously Twitter).

Musk says he is committed to fighting antisemitism whilst simultaneously defending free speech. Another tightrope to walk with pros and cons that are dividing Jewish diaspora groups.

But what was of greater interest in the current context were Netanyahu’s comments on judicial reform.

In English in the United States, rather than in Hebrew in Israel, Netanyahu said, according to the Times of Israel in regards to his government’s initial proposals: “I thought that was a mistake. It was moving the pendulum from one side to the other side. I have a majority in the parliament, in the Knesset, to legislate anything, but I didn’t. I held back because I want this to be a consensus.”

Some of his own government members in Israel rushed to question the ‘mistake’ comment, whilst anti-judicial reform protest leaders expressed incredulity.

Netanyahu continued, according to the TOI, saying: “We have the most activist judicial court on the planet… Democracy is supposed to be checks and balances of the three branches on each other. In Israel, the judiciary has no checks and no balances. It just has power. So, there is a request to try to bring it back into line and that has been sort of boiling all the time.”

I want to sit with the public — that is to have as broad a consensus for a minor correction, basically some correction on how we choose judges, because otherwise… we have… in many ways 15 unelected officials — by the way, gifted people, but they replace the government. They’re sort of unelected, and they decide everything. That’s not exactly democracy.”

A year ago, this would have sounded reasonable, coming against the background of a desire for some movement towards judicial reform and as a starting point for discussions.

Hardly controversial.

The big difference today is, as in other matters – trust – or the lack thereof.

Trust is hard to build, but easy to lose.

Israel’s leadership on all sides and at all levels, have a huge job ahead of them, to rebuild that trust.

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

 

 

G’mar Hatimah Tovah

 

Dr Ron Weiser AM