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Tisa b’av it is the worst day in the Jewish calendar. During mourning and fasting, it marks the destruction of the first and second temples in Jerusalem – the result, in part, of turmoil among the Jews. This year the commemoration began on July 26, two days after the Israeli government passed a law aimed at significantly weakening the country’s Supreme Court. Many opponents of the reform see it as an act of self-destruction. The echo of Tisha B’Av only deepened the grief.
The vote on July 24 means the High Court will no longer be able to overturn government decisions on “reasons”, which critics saw as a blank check for judicial intervention. This has provoked an angry reaction among many Israelis. The opposition boycotted the last vote. Israelis once again took to the streets to protest. Trade unions are talking about a general strike. Thousands of military reservists have pledged not to go into active duty. The day after the vote Morgan Stanley downgraded Israel’s sovereign debt. In a surprise criticism, America, Israel’s closest ally, described the government’s move as “unfortunate”.
The uproar reflects – and deepens – the divisions within Israel over the most fundamental questions about the country’s democratic and Jewish character. If the fighting is not to threaten the Jewish state again, politicians from all sides must step back from the brink and find a constitutional reform that will command broad support.
Whether Binyamin Netanyahu wanted it or not, the legal reforms have become his main policy. The prime minister had delayed a vote in March to allow time for negotiations, but talks went nowhere. Even as he waited to vote in the Knesset this week, he tried in vain to persuade his friends to delay again. Instead his coalition of far-right and ultra-religious parties came through the reformation. Just a day out of hospital for heart surgery, Mr Netanyahu looked tired. He faces allegations of corruption that reform of the High Court could help eliminate. By accepting the threats of his far-right partners to resign, he has made it clear that he is putting his own political life above all else. So he overpowered the rebels.
Even the government’s staunchest critics agree that Israel’s judicial system needs reform. Many limits would be placed on the use of the rationality standard, without eliminating it completely. The committee that appoints judges has a majority of sitting judges and representatives from the Bar Association, leaving politicians in the minority. Because the right feels that the court no longer reflects the views of the country, the idea that it is self-perpetuating is harmful.
However, the way in which the government has gone about its changes has raised fears that the farthest way to overcome any legal obstacles is the efforts to change Israel, regardless of the there by changing religious status or by annexing parts of the Palestinian West Bank. After the vote, Yariv Levin, the hardline justice minister, said that this was only the first step in the coalition’s plans. Some are concerned that the government wants legislation that would overturn the electoral system to make a Conservative victory more likely. Because the Knesset has only one chamber, Israel risks slipping into majority rule—a particular risk for secular Jews and minorities, including Israeli Arabs.
The Knesset is about to enter its summer recess. That will take two months to find a way to heal a divided country. Although Mr. Netanyahu is concerned about his political survival, he must understand that if the cost goes through judicial reform, he will pay with his legacy. If he does not want to be remembered as the prime minister who weakened Israeli democracy, he must build a consensus. If he cannot find that among politicians, he should establish a comprehensive and inclusive constitutional convention that codifies the powers of parliament and the courts.
And if Mr. Netanyahu fails? The work will be the responsibility of the High Court. They have said they will stop hearing appeals against the law until September. If the coalition is determined to follow the reforms to their full extent, the court should strike down the law. He is faced with a terrible choice. As the first court to reject part of one of Israel’s basic laws, which is in fact the country’s standing constitution, the court would appear to be judging those who say it is – out of control. But if he didn’t do that, that would leave all of Israel’s institutions in danger.
Striking the law would lead to Israel’s constitutional crisis. But that would force the country’s leaders to deal specifically with how to preserve democracy. Israel’s founders failed to write a constitution because they could not agree on principles such as its relationship with the Palestinians and the role of religion. It has gone through for 75 years. If the temple is not strengthened, it may begin to decline. ■
