Despite twenty-nine consecutive Saturdays of protests with hundreds of thousands of people in the square, despite the march of over seventy thousand from Tel Aviv to Jerusaleminternational appeals, last-minute mediation attempts even among the exponents of the majority, despite the heart operation, Netanyahu scored his personal victory and the disputed justice reform, desired by his government, saw the approval of its first part.
A country divided but alive
After thirty hours of discussion, the Knesset approved the cancellation of the reasonableness clausethe principle according to which the Supreme Court can reverse decisions of the parliament and the executive if it deems them unreasonable. The country is divided: demonstrations have been called in all the big cities to protest against the abolition of the law, the unions are threatening a general strike and voluntary desertions among the reservists are increasing. Police dispersed protesters with water cannons and made arrests. In contrast, supporters of Netanyahu and his executive gather to celebrate. The internal security apparatuses have increased the alarm, as the country is giving a feeling of vulnerability in the eyes of the enemies. The shekel weakened and the stock dropped a few points.
For Israel it is a time of great confusion, of internal dissension. But also of democratic vitality. Israel is a country that rediscovers itself alive, that is fighting for one reason or another. The disagreement it could have led to a full-blown civil wargiven that the army and many security apparatuses have also taken a stand.
Now the battle has moved from the streets mainly to the courtrooms, where seven appeals against the approved law will be discussed in September. Classrooms of that same Supreme Court whose powers the justice reform wanted by Netanyahu wants to resize. And the summary of this clash of powers between the judiciary and the legislative is in this institutional short circuit. The second decides to reduce the powers of the first, the only counterpart to his decisions. He approves a reform which, however, is appealed by third parties to the judiciary. Who finds himself discussing and deciding whether a law really limits his own powers or not. And based not on a constitution, but on laws and customs.
Focus on reform
The justice reform that Benjamin Netanyahu’s government intends to carry forward mainly concerns the institution of the Supreme Court. This is the only counterpart to the power of the executive and parliament, since even the Israeli president has no power to block or roll back the laws. Israel does not have a constitution but 13 basic laws. The current state the Israeli Supreme Court it can nullify any law decided by the government with a simple majority. The Court, which is based in Jerusalem, is made up of 15 judges appointed by a commission of 9 members: 3 by the Court itself, 2 lawyers, 4 politicians chosen by the government (2 ministers, 2 parliamentarians). According to the current government, this arrangement would lead to an excessive imbalance in favor of the judiciary over the political one. Netanyahu’s goal is to bring the number of members of the Committee to 11 ensuring the prevalence of politically appointed members over technicians.
Another intention of the reform wanted by the premier would be eliminate the power of the Supreme Court to abolish laws passed by Parliament. Or rather, the Court could decide to block them, but the parliament, with a simple majority of 61 members out of 120, could overturn the Court’s decision. The reform also provides that the decisions of the Court regarding the invalidity of a law, even a fundamental law, are taken with a majority of at least 80%, and no simpler. Another point of discord concerns the duties of the ministries’ legal advisers, who would no longer be independent under the control of the ministry of justice, but chosen with political criteria and whose opinions are binding. And then, the question of the reasonableness clause, typical of the common law, the cancellation of which has already been approved and entered into force.
Judicial reform has been talked about for some time. After all, it seemed strange to many, for example, that two out of three judges assembled decided to block and abolish a provision of a majority of parliamentarians voted by the majority of the country, moreover not on the basis of a constitutional provision, but on a principle of reasonableness based on customs, practices and the like.
The alternatives to the Netanyahu reform
What the country needs is for one to be approved constitution to resolve any doubts. Also because the Court will have problems judging the appeals. The cancellation of the provision was made as an amendment to a fundamental law, the one on the judiciary. The Court has never struck down a basic law until now. There could be two paths on which to move for the discussion which, as various Israeli constitutionalists interpret, are in any case difficult to follow and easily neither of the two could eventually lead to the cancellation of the provision voted by the Knesset.
The first possibility would be to challenge the misuse of constituent authority, which could be invoked in cases where the Knesset believes that a new Basic Law, or an amendment to an existing one, has been passed for narrow, short-term goals. The second could be to consider the constitutional amendment as unconstitutional, because it violates other fundamental laws or is believed to violate the very essence of the state as Jewish and democratic, as established in the Declaration of Independence.
For which the ball returns to politics. Benjamin Netanyahu, after having refused any compromise, just after the approval of the law, said he was more than willing to discuss with the opposition and to find a compromise on the remainder of the reform.
ABIR SULTAN’s copertina’s photo