If we accept the assumption that Israel has entered a Hungarian or Polish scenario in recent months, in which an elected government pressures society away from a democratic-liberal path and towards limiting rights and reducing criticism of the government – then there is no doubt that civil society has acted in an astonishing manner. The question for debate is whether this is indeed the scenario that Israel finds itself in.
To the hard core of the reform’s opposition, this is not an issue at all, but a fact. The opposition does not enter into the high-resolution details of the compromise proposals on the committee for the appointment of judges, or the appropriate mechanisms for repealing a law.
Rather, in their view, the goal of the reforms is the end of Israeli democracy at its most fundamental level, and its replacement by an authoritarian regime with the support of the majority. Perhaps it will happen in stages, with pauses along the way, but it is definitely happening. In this scenario, any opposition is not only legitimate, but also worthy, and any compromise is a “semi-dictatorship.”
In contrast, the hard core of the reform’s supporters see the reform as part of a long series of attempts to weaken the Israeli elite. According to them, that elite holds values that it calls “universal,” but in practice, it excludes certain populations and maintains its control.
They see the Supreme Court as a tool in the hands of that elite that holds a universal and progressive outlook, which allows it to hold on to its power and impose its values even after it has lost the support of the public. Therefore, they add, any attempt to change the balance of power in the Supreme Court’s outpost will always run into a wall and suffer from delegitimization.
Considering that these two scenarios directly contradict each other, the question arises as to which one is the correct one. But the answer to this question is still unclear.
What each side cannot see
It is difficult for the opponents of the reform to admit that the Supreme Court has indeed become a preferred tool for shaping Israeli reality, while skipping over any attempt to achieve a broad consensus. There is no appointment or public controversy today that does not pass through the Supreme Court's courtroom. The powers it has were never determined in a broad public debate, but rather “annexed” gradually.
The composition of the Supreme Court is far from reflecting society's opinion, and suffers from biases like any homogeneous population group. Unlike the Knesset, where compromises are required, the Supreme Court can only decide who wins and who loses. Solving core problems in society in this way has a high social price.
On the other hand, the "true" intentions of the reform’s leaders cannot be discovered without a brain scan. But even if their intentions are as pure as they claim, they don't necessarily know where their proposed changes will lead to, nor where it will lead them.
Concentration of power is not always done from a careful master plan. It also has its own dynamics. The government, especially if it encounters strong opposition and polarization, can blind even the eyes of the righteous. Few are willing to give up the power they have gained, especially those who are convinced of the correctness of their path.
The escalation in recent months has inflamed each side's belief that their own script is the true and only one, and reduces their attention to the possibility of another story. But at our current point, the responsibility on both sides is not equal: Rothman and Levin started the blitz.
“Maximum reforms” reveals its true colors
The choice to put the maximum reform on the table, which in practice means a deep and rapid change in the governmental system of the State of Israel, and to try to push it through within a short window, was a destructive tactic.
In the last two months, many members of the Knesset, including Netanyahu, Smotrich and Rothman himself, have promised that they can be trusted to protect the rights of the political minority. But the conciliatory message contradicted the method. If the legislative process is a display of intentions by a majority that is unwilling to protect the position of the minority, why should the public believe that anything will change the day after the law is passed?
This mode of operation is inseparable from the nature of the sought-for changes. According to reports from the negotiation chambers, there were possibilities for agreement on most of the clauses. Regarding the repealing of laws and Basic Laws, the debate centered on determining the desired majority, and in relation to legal advisors, the reform initiators withdrew from their original target – turning them into positions of trust.The committee for the selection of judges was the main issue on which no agreement could be reached. And yet the leaders of the reform decided to focus on it.
The law that was finally discussed is full of holes (for example: the repeating fall of the government would cause all judges to be appointed by different coalitions for years), and devoid of a coherent agenda. It is doubtful whether it would have survived the next Knesset. Bottom line, it seems that the leaders of the reform mainly wanted to allow the current government to appoint two judges and a president to the Supreme Court.
In an interview with Davar, Professor Moshe Cohen Elia explained that amidst the legitimacy crisis of the highest courts in the world, their opponents resort to two methods: weakening them or taking them over. The Rothman-Levin plan began as a mixed scheme, but it appears that at the end of the day, the two focused on taking over the Supreme Court before, or in place of, limiting its power.
A one-sided victory will damage the public sphere
If the leaders of the reform had prioritized compromise as a fundamental element in the legislative process, it is very possible that they would still have encountered resistance from the protestors. Already now, with the start of the negotiations under the auspices of the president, there are those who are looking for a reason to invalidate the process. Among the protesters, there are those who think that these negotiations are an opportunity to give the Supreme Court more power, to attack the recently passed law banning hametz in hospitals during Passover, or alternatively, to replace the government.
The delay in the process of placing the bill on the Knesset's table after its approval by the committee, which the attorney general made clear is merely technical, reflects that there are those who want to see the compromise removed from the table even before the debates begin.
But in the end, the will of the public cannot be ignored. According to all polls, an overwhelming majority of the public is interested in agreeing to a compromise. These are not always the loudest voices, and the political interest in a compromise is limited. There are no compromises on the ballot – if someone gained a vote, someone else probably lost one. But any situation in which one of the parties is fundamentally defeated contradicts the attempt to lay down common rules for a shared Israeli public sphere.
It is not clear that the different publics in Israel can or should write one common story. But the road to a compromise also must legitimize both scenarios: the right's long-standing criticism of the Supreme Court and the fear of the dissolution of the proposed changes on the one hand, and the fear of the “Hungarianization” of Israel and the changing face of society on the other. This is the only way that the extremists in the opposition will not dictate the agenda, and turn their fears into a self-fulfilling prophecy.
Professors of constitutional law, who are gaining surprising popularity this year, explain that there is a “constitutional moment,” in which the general public shows interest in issues related to the rules of the game, to the political and legal mechanics through which society operates. This constitutional moment is already here. The question is whether there will be leaders and sectors of society who will be able to rise to the occasion.
This article was translated from Hebrew by Lily Sieradzki.
