Now that reasonableness has passed, let's get reasonable
Alan Stein
Spoiler alert: The implementation of the new Basic Law limiting the use of the reasonableness standard needs to be delayed to give the next government, chosen after the next election (hopefully, we'll just need one election next time), a chance to have its say.
As a dual citizen living in both Israel and the United States, while not being an attorney I believe I have an understanding about the judicial reform controversy that escapes most Israelis and most Americans, including American Jews.Had the initial protests actually been purely about the initial judicial reform proposals, I might have joined them. Although judicial reform is clearly needed, as has been recognized in the past by most of those now leading the increasingly hysterical opposition to the current efforts, the original proposals contained some provisions I felt unwise. However, it was clear from the beginning that the protests had more to do with trying to undo the results of the election than the proposals. The protests were and remain, in effect, Israel's version of the massive anti-Trump demonstrations in the United States in 2016 and 2017 surrounding Donald Trump's election and inauguration and the pro-Trump rally in the Capitol on January 6, 2021 trying to overturn his loss in the 2020 election. Unfortunately, the Israeli protests have been far more sustained, far more disruptive, have already done tremendous damage and threaten to do far more. They have already done far more damage than any provisions of the original proposals could have done.
Many have said that Netanyahu and only Netanyahu could have ended the unrest. Others have said that about Lapid, Saar, Barak and Olmert. They're all both right and wrong.
Netanyahu might have been able prevent the disaster at the start, had he not been constrained by the attorney general from getting involved. (This, itself, provides a good case for the need for reform!) Or if he had shown more courage and ignored the attorney general before things got totally out of hand.
The opposition could also have prevented the disaster by addressing their followers and speaking honestly, putting the good of the country ahead of their hatred of Netanyahu, who has been prime minister for so long and has such a talent for alienating people, including close associates, and ahead of their goal of forcing the collapse of the coalition.
They could have. Netanyahu could have. The coalition members really pushing the judicial overhaul could have.
None of them did. They all acted irresponsibly. They all acted unreasonably. They all share responsible for the damage that has been done.
Now, we have one small portion of the package enacted into law. From the reports I've read, it's not much different from what was almost agreed upon in the negotiations under the auspices of the president.
The protests have gotten more disruptive and more damaging and coalition members are saying they will be pushing ahead with more of the changes.
If either side wins a complete victory, it will be a total disaster for Israel.
I have some recommendations.
First and most important, immediately pass a slight modification to the legislation just enacted, specifying that it will not go into effect until month (or some other "reasonable" period) after the next election is held and a new government is formed. A similar provision should be included with any additional modifications of Basic Laws.No longer could any claim they were fighting the reforms to preserve democracy. They would not affect either the current coalition or Netanyahu's legal cases and whatever government is elected next time could quickly put an end to any changes it opposed on principle rather than as part of a strategy to bring down the coalition.
With the atmosphere, if not the summer heat, hopefully cooler, resume the talks hosted by President Herzog, but this time participate in good faith, honestly try to reach agreement so that we can move forward, concentrate on healing the schisms that have been exacerbated the last few months and deal with the basic problems we all share.
And then, we need to deal with one of the basic (pun intended) problems that has emerged in both Israel and the United States: governments implementing fundamental changes opposed by large portions or even majorities of the population.
For example:
In Israel, the Oslo Accords were approved over the opposition of roughly half the country, as was the Gaza disengagement. Basic Laws have been swiftly amended for purely political convenience and now a Basic Law has been enacted not just without a consensus, but over bitter opposition.Many have said the current events demonstrate our need for an Israeli Constitution. I agree, but I doubt we'd be able to get an agreement now without further tearing the country apart. However, we can work towards one by making Basic Laws really basic in the following way:
Start with something like the following Basic Law: A Basic Law shall be enacted upon the approval of a 2/3 vote of the entire Knesset.
Given that we have a unicameral legislature, perhaps it would be better to require the approval of two consecutive Knessets, or a second vote a reasonable period, perhaps a year, after the first vote. But a Basic Law should require overwhelming approval and should not be able to be enacted without giving people time to consider it.
As for existing Basic Laws, let them retain that status for a reasonable (there's that word again) period, say five years. If they are reapproved using the new conditions during that period, they would retain the status of Basic Laws; if they are not reapproved, they could still be laws but not Basic Laws.
After another five years or so, we could compile those now meaningful Basic Laws together and approve them as a Constitution.
In the meantime, let's have some courage and statesmanship from our political leaders rather than cowardice and partisanship.
Alan Stein is a dual citizen of Israel, living in Netanya, and the United States, living in Massachusetts. He is an active advocate for Israel, founder of PRIMER-Israel and PRIMER-Massachusetts and president emeritus of PRIMER-Connecticut and was CAMERA's Letter Writer of the Year in 2015. In 2009, his op-ed giving advice to Barack Obama was published on the day of Obama's inauguration. Upon making aliyah in 2014, his op-ed giving advice to Benjamin Netanyahu was published. Stein believes it is unfortunate that neither Obama nor Bibi was wise enough to take his advice. He hopes history does not repeat with the advice he's giving in this op-ed.