To prevent another Tisha Be'av, we must learn something from the past - opinion

The dispute is approaching its moment of truth. Next week – the week of Tisha Be’av, a national day of remembrance of the tragic consequences of an ancestral civil war – the Knesset is expected to officially enact the first legislative element of the contentious judicial reform package. 

If the bill to limit the reasonableness standard passes into law in the form currently proposed by the governing coalition, opponents of the reform will inject new steam into the massive protest movement that first took to the streets six months ago.

The basic agreements of Israeli society will be broken. The alliance of fate that unites Israelis will be deeply etched with fissures, and it is doubtful whether it will be possible to repair the breaches.

Sayeret Matkal (the IDF’s elite reconnaissance unit) will, for example, split into two camps. Around four hundred reserve officers placed, with “trembling hands,” a letter on the unit commander’s desk announcing that they would stop serving if the legislation is passed. In response, a group is being organized that is prepared to extend the duration of its reserve service to fill the gap.

What's happening in the elite unit?

What is happening in this elite unit – that counts among its veterans Prime Minister [Benjamin] Netanyahu and his most unabashed and vocal opponent, Ehud Barak – is just one frightening example of the process underway among large swaths of Israeli society: pilots, physicians, academics, lawyers – the builders and defenders of the nation – all threaten drastic measures if the legislation is enacted. 

Others, many of them from the same identity groups, are voicing the opposite view and calling for the legislation to be passed in its entirety. In the middle are families and communities eaten up by the dispute. Beloved Israel is being torn apart.

Four months ago, as part of the work of the “Deans’ Forum” – a group of 10 legal scholars assembled by the Jewish People Policy Institute – we submitted to both the opposition and the coalition a comprehensive proposal for a compromise framework for all parts of the controversial reform package. The proposal expressed our view that the system needs fixing but not smashing. That a better balance between the political and the judicial branches of government is necessary, but not one that erodes Israel’s democratic foundations. 

From the countless conversations we held with relevant senior officials, agreement emerged on most of the proposal’s details. But unfortunately, it did not work out in the end. Since then, the situation has worsened: The streets are in chaos, bad blood fuels an increasingly extreme discourse, and we have nearly reached the point where brothers raise their hands against each other. An updated proposal that will allow the sides to back off from extreme choices is urgently required. The abyss is just ahead. 

Opponents of the reform must remember that it is supported by 64 Knesset members who were elected less than a year ago, and whose vote represents the majority position in our political system. At the same time, the reform’s initiators must remember that the polls show that the majority of the Israeli public does not support the version currently on the Knesset’s table – and more importantly, that systemic changes must be drawn up with great care on the basis of the broadest consensus possible. Claims of “past injustices” – such as the enactment of Basic Law: Human Dignity and Liberty by a small majority in 1992, or the judicial system’s longtime resistance to change – however well-justified, must not be regarded as license to forge injustices in the present. 

At this moment in time, compromise is vitally needed, and it is within reach. The right-wing government cannot be expected to withdraw its entire agenda just because a veto effort is being mounted, whether through IDF reservists or the Israeli street. 

The opposition camp must therefore allow the coalition the space to correct course, while also respecting the mandate it received at the ballot box. The coalition, for its part, must confine itself to amendments that will not rattle Israel’s democracy, certainly not when they are being made without the consent of at least part of the opposition.

We, therefore, propose that the two sides reach the following agreement: Restrictions on the reasonableness standard will be enacted, but in a more limited way than currently contemplated. In exchange, the coalition will commit to shelving the other elements of its judicial reform plan, for the rest of its term, unless it can achieve a broader consensus – one that includes some of the opposition – through talks at the President’s House (Beit HaNassi) or elsewhere. 

According to our proposal, the reasonableness standard would be restricted so that it is insufficient, on its own, to overturn government decisions, including decisions made by ministers within the purview of their legal authority on policy matters discussed and approved by the government in a plenary session. Government appointments would be “immune” to the reasonableness standard only when they require Knesset confirmation (as with ministerial appointments).

In contrast to those situations, according to our proposal, decisions by government ministers – whether based on their direct authority or on Article 34 of Basic Law: The government, which grants ministers the powers conferred upon civil servants – will remain subject to judicial review, including on the grounds of reasonableness. 

This would also be the case for governmental decisions regarding appointments or dismissals that do not require Knesset approval, as with the directors-general of the various ministries, senior public officials, and the like.

Our proposal constitutes a significant change in the existing situation, as it immunizes government-plenum decisions from judicial review on the basis of reasonableness, as well as government appointments for which Knesset confirmation is required. 

There is a clear logic to this: as a general rule, the judiciary would retain the authority to examine the reasonableness of exercises of discretion by those vested with executive authority in Israel. However, where discretion has been exercised by the elected body at the head of the executive branch – the government, or in the case of an appointment that requires confirmation by the legislative branch – the Knesset, the judicial branch will not have the authority to invoke the reasonableness standard. 

In this way, the law would reflect an appropriate balance of power among those who stand at the head of the three branches. Of course, the judiciary could continue to review government decisions through the lens of other recognized administrative standards, which are many and varied.

The opposition may still find it hard to accept this proposal now, for fear of establishing a precedent that may be followed by a unilateral coalition push to continue the reform process. The coalition – more precisely, the prime minister – must have clear intentions (in Hebrew, as already articulated in English).

The coalition must unambiguously commit to not allowing the reform plan to move forward without a wider agreement that extends beyond the boundaries of the current coalition (let’s say, 70 Knesset members or more). The opposition, for its part, should announce its continued participation in a genuine dialogue on the rest of the reform issues with the aim of achieving the necessary corrections and balances.

It must move forward in the spirit of compromise, without undermining the independence and robustness of the judiciary or the democratic underpinnings of the Israeli political system. These mutual clarifications would be a first step toward healing the fissures and fractures in Israeli society.

According to our proposal, none of the parties would declare victory over their opponents. The coalition would succeed – in a measured way – in effecting some degree of modification in the balance of power between the branches, and the opposition would succeed in ensuring the continued separation of powers, as required in a democratic system. All sides must realize that a one-sided victory would be short-lived and could quickly lead, quite literally, to chaos and destruction.

If the parties internalize and converge around this compromise framework – even if not happily, but understanding that there is no better choice – on this Tisha Be’av we will be able to feel that we have learned something from the past and will not repeat the mistakes of our ancestors. 

Adv. Raz Nizri is a former senior deputy attorney-general and currently heads the Department of Public Law, Regulation and Crisis Management at M. Firon & Co. Advocates. 

Yedidia Stern is president of the Jewish People Policy Institute (JPPI) and a professor of law (emeritus) at Bar-Ilan University.