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Proposed law reform could be dire for Israel

“ZIon response Redeemed by judgment. Sim Charothman, chairman of the Knesset’s Law Committee, began each session by quoting the words of the prophet Isaiah. Mr. Rothman is tasked with pushing for an overhaul of the country’s judicial system. On Feb. 13, nearly 100,000 Israelis Demonstrations outside the Knesset, where the council voted in favor of the first part of the reforms.

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Leaders of these protests cited the same prophecy. Both sides claim to have the same goal: to save Israel’s democracy. Since Benjamin Netanyahu’s latest government took power in December 2022, Israel has been mired in bitter debate over the powers of a highly independent Supreme Court. Supporters of the reform argue that they will restore democracy after decades of a “judicial dictatorship” that imposed its own left-wing values. Opponents say they threaten Israel’s democratic nature and risk introducing majority rule. But it is increasingly clear that the conflict is not just about the role of judges in the country. The two sides are arguing over different visions of Israel.

The Government is right to point to the shortcomings of the country’s judicial system. The balance of power between the courts and parliament is unclear. Israel has no formal constitution. In this vacuum, courts have become more aggressive. In the 1990s, it considered the series of “basic laws” establishing rights passed by the Knesset to have quasi-constitutional weight. It has since rejected various legislation based on narrow and controversial interpretations of those laws.

But the government’s agenda goes beyond corrective powers. Under its plan, parliament can overturn Supreme Court decisions in almost all cases. Courts will no longer be able to annul government decisions on the grounds of “reasonableness”. Governments can overlay judicial appointments committees with government representatives.

If they pass, the reforms would remove nearly all checks and balances on government. Not only does Israel have no constitution, it also has no upper house to review legislation. The government at the time controlled the parliament. Members of Mr Netanyahu’s far-right coalition have put forward a series of controversial proposals, including disqualifying Israeli Arabs who “support terrorism” from running in elections and allowing politicians with criminal records to serve as ministers.

Legal experts say the changes could make it easier for Israeli leaders and military commanders to face war crimes charges in international courts by making it harder to prove at home that they are subject to an independent judiciary. Opponents of the government, including business leaders, former generals and intelligence chiefs, opposed both the content and process of the reforms. They were hastily passed in a series of rowdy committee meetings, with objections from the opposition and legal experts already dismissed.

“Democracies like ours risk becoming dictatorships,” warned Ron Hulday, mayor of Tel Aviv, Israel’s secular and liberal bastion. “But dictatorship can only return to democracy through bloodshed.” Such dire predictions are increasingly common. On February 12, Israeli President Isaac Herzog said the country was “on the brink of constitutional and social collapse.” He called on politicians to discuss a stripped-down version of the plan. The government refused. The opposition leader, former prime minister Yar Lapid, is willing to discuss legal reforms but insists that a presidential council should come up with a constitutional proposal to be presented to the Israeli people.

Mr Netanyahu’s personal legal troubles made reaching a consensus more difficult. The prime minister, once a staunch defender of the independence of the Supreme Court, has turned into a fierce critic after facing allegations of bribery and fraud, which he strenuously denies. If the court were to recuse Mr Netanyahu, Israel could face a constitutional crisis.

Concerns about reform are running rampant. The Israeli business community, which rarely meddles in politics, has criticized the proposals. Workers in the tech sector, which accounts for more than half of Israel’s goods and services exports, joined the protests, with top executives threatening to move funds abroad. “Israel has built a prosperous economy partly because of its strong institutions and clear ground rules,” explained Karnit Flug, former governor of Israel’s central bank. Making rapid and radical changes would jeopardize that, she argues.

The hostile debate has forced Israelis to grapple with the demographic and ideological changes that brought their country’s most devoutly nationalist government to power. It pits supporters of the far-right parties most against the court against the secular middle class that has gathered around the court, who are less likely to serve in the military or work at tech companies.

Israel’s internal turmoil seems to have little to do with its relationship with the rest of the Middle East, which is hardly a hotbed of liberalism. But Mr Netanyahu returned to office promising to establish official relations with Saudi Arabia. The tumultuous start to his administration could make that all the more difficult.

The kingdom doesn’t care much about the state of democracy in Israel: it’s not a democracy either. But the Saudis do have their own interests in mind. Shared hostility toward Iran has brought them closer to Israel over the past decade. However, for the Saudis to formalize the relationship, they need something more. The US brokered the Abraham Accords, and four Arab countries upgraded their ties with Israel in 2020. It may need to play the same role in the Saudi-Israel deal. Normalization is a powerful card in Washington: if the Saudis play it, they can expect to boost their diplomatic standing considerably.

Joe Biden has spent most of his presidency at odds with the kingdom. Now, his government has delivered a rare public rebuke (and a sharper private rebuke) of Mr Netanyahu’s legal plans. A president with frosty relations with Israel and Saudi Arabia may not be willing to offer them incentives to make peace — and if he doesn’t, the Saudis may not be eager to join the Abraham Accords.

Then there are the Palestinians, whom Mr Netanyahu would rather forget. The nominal Saudi ruler, King Salman, still feels sympathetic to their plight, but he has delegated much of his power to his son, Crown Prince Mohammed bin Salman. Younger Saudis are less sympathetic to the cause. Still, the kingdom is unlikely to sign a diplomatic deal if Israel annexes parts of the occupied West Bank, or takes similarly aggressive steps.

Israel’s wars with its Arab neighbors have long kept its society together. The question of Palestine has been the defining issue of Israeli politics since the occupation of the West Bank and Gaza in 1967. But internal divisions over Israel’s identity have intensified as the Arab world has come to accept Israel’s existence and hopes of resolving the conflict with the Palestinians have faded. Netanyahu has long used them, but now they threaten to irreversibly divide Israel. Mr Netanyahu wants peace with the Saudis to be his legacy. Instead, he is endangering the democracy, prosperity and unity of his country.

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