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ISRAEL CRISIS-IT IS MUCH MORE THAN A LEGAL REFORM

By Josef Olmert

For nearly six months, Israel has been gripped in an internal crisis described by many as the most severe challenge to its very viability as a democratic state. Israel experienced significant crises, such as the Altalena crisis in June 1948, only weeks after the establishment of the state, the reparations from Germany crisis in 1952, the turbulent period after the Oslo Accords climaxed with the assassination of PM Rabin in 1995, and the Disengagement from Gaza in 2005. Yet, remembering these major periods of upheaval should not detract from the seriousness of the current situation, particularly the fact that it is a multi-faceted crisis. It is legal, political, economic, and military, so it touches on the core foundations of the state. Even more so, it is a crisis of identity.

The crisis erupted over the proposed ”legal reform” by the new Right-Wing government, elected on 1 November with a 64 out of 120 majority in the Knesset. Let us deal with this reform first. However, it should start with a background without which it is very difficult to grasp the depth and extent of the debate raging now in Israel.

The package of proposals for changes in the legal system in Israel was NOT the main theme in the LIKUD election campaign, surely not the one mentioned and emphasized by Netanyahu himself, who conducted the entire LIKUD campaign as his own private matter. It was not even emphasized in the campaign of his electoral partners, the Religious Zionism party, and the two Ultra-Orthodox parties, Shas and Torah Judaism. It also has to be emphasized that Benjamin Netanyahu has been subjected to allegations of corruption, and his trial started before the elections and is still on. NO law in Israel forces a PM under trial not to stand for reelection and serve as PM. However, the question as to the possibility of a collision of interests is looming large. There is an Israeli Hebrew saying relating to a scenario of this kind, ” Kosher, but stinks”. Netanyahu is the first and only Israeli PM to serve while being subjected to a trial. What else happened which immediately caused an uproar was the personal composition of the new government. In particular, there were the appointments of Itamar Ben Gvir, a man convicted for being a leader of a group recognized as a terror organization, to be the minister of homeland security, and that of Bezalel Smotrich, a man without any experience in financial matters and with extreme positions on state and religion to be a minister of finance. Clearly, Netanyahu had to have them in, both being leaders of a party [Religious Zionism], which gained 14 seats. Still, the feeling that this was a radical government intent on bringing about major changes in the legal system of Israel became a certainty with the appointment of Yariv Levin from Likud to be the new Justice minister. Levin is an ideologue, known for his strong support for the settlements movement, but more so for his opposition to the current legal system in Israel, opposition which was stated with a lot of venom on numerous occasions. In Likud and in the religious parties, there has been a deep sense of frustration with what has become known as the ”judicial activism” of the Supreme Court, a term associated with the Supreme Court president Aaron Barak, who served in this capacity between 1995 and 2006. This sense was augmented by the composition of the court, in which there has not been enough representation of religious judges as well as Mizrachi judges. Altogether the court was regarded by the Right-Wing to be an ”enemy territory’’.

All public opinion polls taken in Israel for years before the last elections came out with two somewhat contradictory results, and the division of opinions reflected though not totally so, the Right-Left divide in Israeli public opinion.

A large segment of the population, sometimes a majority, did view the court as not being balanced enough politically and not being representative enough of all sections of the population, but at the same time, there has always been strong support for the necessity of the court to maintain its independence as should be in a democracy in which separation between the executive, legislative and judging branches is a sacred principle. Aaron Barak himself fueled the sense of bitterness in the Right-Wing with statements like ”the court should reflect, NOT represent society” and ”I looked for a good Moroccan jurist to be nominated to the court but did not find one.” I may add that the court should have at least three Arab judges in accordance with their proportion in the population, but there is only one. It is important to mention because the Left-Wing traditionally complained about it. The radical

pro-Palestinian Left-Wing charged that the court basically was pro-occupation. Does that put the court in a good place in the middle? Well, that is in the eye of the beholder, but overall, it has been a constant grudge of the Right-Wing, a vocal and vociferous one; The Supreme Court is against us. For 12 years, Netanyahu blocked people like Levin from initiating any changes in the system, and he and others in Likud always prided themselves with the famous saying of Menachem Begin, ”There are judges in Jerusalem.” Netanyahu changed dramatically his long-held position only AFTER the start of his trial. Clearly, that aroused the inevitable suspicion that he did so to intimidate the court and probably lead to a suspension, if not outright cancellation of his trial, and so as soon as his current government was sworn in, he gave the green light to Levin to put forward the ”reform”.

THE MAIN POINTS OF THE REFORM;

1. Limiting the Supreme Court’s ability to rule against the legislative and executive branches by allowing A MAJORITY OF 61 IN THE KNESSET TO OVERRIDE SUPREME COURT DECISIONS
2. REMOVING THE SUPREME COURT AUTHORITY TO REVIEW THE LEGALITY OF ISRAEL’S BASIC LAW-THE BASIC LAWS FUNCTION IN THE ABSENCE OF A CONSTITUTION IN ISRAEL
3. Changing the composition of the committee nominating judges-in order to give the government the automatic majority

Until now, the committee has 9 members, including 3 Supreme Court judges, and they have an effective veto power because nominations must have a 6 out of 9 majority.

1. Limiting the power of the Legal Advisor of the government, who until now had the power to prevent the government from making certain decisions and propose legislation deemed not to pass the final approval of the Supreme Court.
2. Limiting the ability of the Courts, particularly the Supreme Court to use ‘’Probable Cause’’ arguments.

All the above amounted to a dramatic shift in the legal system. And the initiators of the proposals did not even try to hide the fact that they conducted a ”counter-revolution”. Aaron Barak, they argued, tilted the pendulum to the extreme of a radical ”judicial activism” and, by so doing turned the internal balance between the various branches upside down, and now come the ”defenders of real democracy” and restore the ”right balance”.

The package of proposals was presented to the Knesset AFTER the Likud-led majority approved an unprecedented set of regulations which all increased the allocations given to the PM family, including increasing the public money given to upkeep two-family residences. What fueled the sense that it all came in order to somehow exempt the PM from his trial and its potential consequences was a statement from new Justice Minister Levin that there was a connection between the timing and contents of the proposed legislation and the PM trial. The Likud and its allies went as far as comparing the Netanyahu trial to the Dreyfuss Affair.

Netanyahu thus was put in the center of the developing political drama. The personal legal and political fortunes of the PM were now the center of discussion and debate. The proposals also followed in the aftermath of legislation pushed forward by the coalition to satisfy the Ultra-Orthodox parties, including a bill forbidding the introduction of Chometz in government-run hospitals during Passover. At the same time, there were demands by these parties to enact legislation that might infringe upon the rights of the LGBTQ community. At least in regard to the former, the threats quickly receded, as the Likud-nominated new Speaker of the Knesset, Amir Ohana, a gay man, was approved also with the support of the Ultra-Orthodox.

Altogether it seemed that this time, under Netanyahu’s personal lead and to serve his personal agenda, the new Right-Wing majority was moving toward a major change in the Israeli legal and political systems.

Lastly, in that context, it has to be emphasized that the results of the November elections giving the Right-Wing 64 seats, a workable majority, became possible only because two anti-Netanyahu parties, the Arab Balad party, and the Left-Wing Meretz party, narrowly failed to surpass the 3.25% threshold.

THE ANTI-LEGAL REFORM PROTEST;

The package of legislation cited above was hastily prepared, without any time given for a public discussion, and without any real deliberation even in the Likud parliamentary caucus, as was readily admitted by members of the caucus, and needless to say, in any other Likud body. Nor was it discussed with any of the Likud coalition partners. What WAS discussed WAS a toxic language used by some of the Likud leaders, people close to Netanyahu who made it very clear that the night of the long knives had arrived. It is now the time in which the Right-Wing under Likud of Netanyahu will settle the scores with the Left and with the Supreme Court, in fact, with the 50 % of the electorate who did NOT vote Right-Wing. The arrogant, aggressive talk sounded as if the new democracy envisaged for Israel with the 64 Knesset majority is that of MAJORITY WITHOUT DIALOGUE, an updated Likud version of what democracy means-we can do whatever because we won the elections. NO checks and balances will be in place to stop us. A FATEFUL MISTAKE AS IT TURNED OUT TO BE.

Israel has a very strong civic society, and this IS what was NOT taken into account by Netanyahu and his supporters – they should have known better if they remembered the massive protests of the past, most recently in 2011, when the country was swamped in what was known as the ”Social Justice Protests” whose goals were to provide solutions to the social and economic hardships of the Middle Class and poorer people, mostly housing costs and cost of living. Methods used then by the protesters included mass demonstrations, Civil disobedience, Sit-ins, Social media activism, and Self-immolations. There were other manifestations of violent mass protests by Arab Bedouins, Ethiopian Jews, and the Haredi community.

The intensity and militancy of the demonstrations and protests indicated a growing sense of public disaffection with many features of life in Israel, despite the dramatic improvement in the economic situation and, in recent years, the growing peace and normalization process with neighboring Arab countries. HERE IS A DILEMMA TO BE FURTHER RESEARCHED – IN PREVIOUS YEARS, ACCORDING TO UN REPORTS AND SURVEYS, ISRAELIS, IN GENERAL, ARE AMONG THE HAPPIEST POPULATIONS IN THE WORLD. IN 2023, ISRAEL WAS RANKED NO.4 IN THE WORLD INDEX OF HAPPINESS.SO WHAT IS HAPPENING?

This paper cannot deal in great detail with what seems to be a great paradox-the contrast between these surveys and the reality of deep, all-encompassing dissatisfaction.

Is it the effect of rising expectations that created a rampant sense of hedonism in society? Is it a sense of complacency with the position of Israel in the region and lessening of the security concerns connected with it? I, for one, tend to believe that the above explanations are sound and logical. Still, there is something else I consider to be THE key to understanding the developments described above. IT IS THE CULTURE STUPID, IF WE ARE TO PARAPHRASE ONE OF BILL CLINTON’S FAMOUS OBSERVATIONS. Yes, Israelis complain about the economy, then on election day, they have security in mind, BUT in the background of it all, they carry with them the baggage of history, religion, and nationalism, and all that, when put together, IS CULTURE. The ‘’legal reform’’ opened the gates of a culture war in Israel, a war between two competing elites. A war it is, because unlike previous similar protests mentioned above, this one is much longer. It involves elements never been in play until now, such as mass threats to refuse reserve military service and threats to remove businesses and capital from the country, particularly in the thriving Hi-Tec industry, THE main engine of the Israeli economy, which made Israel the ”Start-Up Nation.” The mobilization of Israelis and Jews abroad against the democratically elected government, in fact the mobilization of foreign governments and international organizations to support the protest, and above all, the

 oft-repeated talk about impending civil war and a split into two states. ” WE” and ”THEM”. A lot of sacred cows have already been slaughtered, but what HAS NOT YET HAPPENED IS ACTUAL VIOLENCE. NO 6 JANUARY IN ISRAEL! A lot of the talk, though, STILL remains in the realm of talks, not actions, but the atmosphere is toxic, and it carries the seeds of bad things to come.

And then, who are these competing elites? Let us start with what is called in Israel” The White Tribe”, mostly Ashkenazi Jews, secular, Middle and upper middle class, professionals, and geographically concentrated in Tel Aviv, Ramat Gan, Givatayim, Haifa, the affluent Sharon cities of Herzliyya, Ra’anana, Kfar Saba, Ramat Hasharon, and Hod Hasharon, and in the more

high-income neighborhoods of other cities, including Jerusalem. They are the voters of Lapid, Gantz, and what is left of Labor and Meretz and the small population of the Kibbutzim and Ashkenazi Moshavim. These constituent groups, however, are heavily represented in the composition of the Supreme Court, the media, the academic community, in some of the elite units of the IDF, like the huge and highly effective Cyber 8200 unit [secret activities, but NOT a secret unit which cannot be mentioned…] and the Air force and the Hi-Tec industry.

Demographically though, this is NOT a majority in Israel. In the current protest, it is overly emphasized that there is a fear that the demographic gap with the alternative elite is only going to grow. Therefore, the judicial system, with the Supreme Court on top of it, is seen as the bulwark against arbitrary use of the demographic majority. So here are the main features of the other competing elite. Mostly composed of the Mizrahi population, Orthodox and Ultra-Orthodox, middle and working-class people, geographically concentrated in the periphery of the big cities, the Negev and Galilee, and Jerusalem, the largest city in Israel. The Mizrahi Moshavim are included as well. High and enthusiastic level of service in the IDF, BUT, AND HERE IS A HUGE PROBLEM-NOT IN THE ULTRA-ORTHODOX POPULATION, MOSTLY THE ASHKENAZI SEGMENT OF IT, NOT SHAS – A source of virulent hostility by many in Israel. Whereas in the early days of the state, David Ben Gurion agreed to exempt a few hundred Yeshiva students from service so that they could focus on Torah study, now we talk about tens of thousands, and add up to this the low rate of participation of Ultra-Orthodox women in the employment market, and we can understand another grievance of many in Israel who feel that they basically are catering with their tax money for a population which wants to impose its way of life on them. There is an element of the situation which was not yet mentioned, and it is important-The ”white tribe ” elite is NOT Left-Wing. There are radical extreme Leftists who raise Palestinian flags and demand to include the ”occupation” in the agenda of the protest, but they are a small negligible minority, and at least two of the leaders of the protest,  Avigdor Lieberman with his large constituency of former Russian olim and Gideon Sa’ar with a lot of Liberal Former and current Likudniks definitely are Right-Wing when we refer to the traditional Left-Right division dictated mostly by the attitude towards the conflict with the Palestinians. Also, another important segment of the Israeli population is not mentioned for a reason-These are Israeli Arabs, and they are not mentioned NOT out of racial or ethnic neglect, simply because they are out of the active protest, save for the Druze community, which, by and large, supports the protest. The reasons for this state of affairs are out of the scope of this paper but surely deserve serious, honest, and thorough discussion.

Altogether all the above requires a much more nuanced academic analysis which is lacking here. Still, the fundamentals of the socio-economic-cultural schisms in Israel are here, and now it is the time to discuss the implications of all that. Finally, in this regard, it has to be made clear that Ashkenazim and Mizrahim are NOT one hundred percent in the respective competing elites. We talk about majorities as can be judged by the results of the elections in particular places and ample public opinion polls.

THE CRISIS-INTERNAL INSTABILITY AND REGIONAL AND INTERNATIONAL IMPLICATIONS;

In referring to the implications of the crisis, we need to bear in mind two important elements; First, the crisis is not over, and while attempts at a reconciliation led and conducted by the State President Herzog are continuing, the likelihood of a compromise between Coalition and Opposition seem good, especially as PM Netanyahu, if we are to believe persistent reports, is keen on achieving such a solution. So, the immediate crisis may be heading towards a solution, even temporary, but what is left to address is the impact of what has already happened, which may have a lasting effect. First and foremost is the question of national cohesion in Israel. For years, many Israeli sociologists and political scientists indicated that if the overall sense of isolation and security threat to the very existence of the state will recede, then structural cleavages in Israeli society will surface and pose a challenge to national cohesion. Secular- Religious, Ashkenazi-Mizrahi cleavages were always mentioned in this regard. Do Israelis experience these cleavages these days? They definitely do, and what makes them SO potentially dangerous is the fact that the population is nearly evenly divided. Ashkenazi-Mizrahi tensions, for example, erupted in the past, even violently, on occasions like the Vadi Salib riots in 1959 and the Black Panthers riots in the early 1970s. However, the difference is that at these times, the old Labor establishment was still a very dominant force in society and could rather easily deal with these crises. Not so these days, as described here. So was the case also with the religious tensions, which mostly were aggravated by Ultra-Orthodox protests, whereas now the initiative, maybe for the first time, is in the hands of the secular camp, which IS THE INITIATOR of protest, while the Ultra-Orthodox seem to be the ones in power. We are witnessing, therefore, a new situation, uncharted territory, and with that comes the inability to give a specific prediction about the future course of events, rather to express concern and emphasize the need for a serious dialogue that will be beyond and above the discussions of politicians only. The good news is that there are many initiatives on a grassroots level to do exactly that, and these initiatives cut across the divisions described. They have achieved local success in some cases, less so in others. However, the one thing that is still a source of hope and promise is the fact that the protesters go to extreme lengths to demonstrate Israeli patriotism, and the national flag IS the symbol of the protests. Politicians can, of course, be of help in this regard, mainly the man in power, PM Netanyahu. Still, he needs to take a crucial personal and political decision and break his electoral bloc, thus establishing a national unity government. I, for one, would not hold my breath in anticipation for that to happen, but never say never when dealing with Israeli politics. There is opposition in Likud to Netanyahu. Some Mks, but they will step forward only if Lapid and Gantz will be ready to moderate their total opposition to any of the proposed reforms. Chances for that to happen are slim, but not totally out of the question, particularly as Gantz repeatedly indicates his desire to achieve a compromise.

There are, however, already other disturbing consequences that take their toll and cause damage. A climate of political instability leads to questions about the strength of the Israeli economy, which has been considered for years to be nothing short of a miraculous success story. The Shekel is losing ground, foreign investments are being reconsidered, and the fact that many leaders of the protest are big players in the Israeli hi-tech industry, the engine of Israel’s economic success, is clearly not helpful, to say the very least.

The sense of growing instability and near chaos also hurt Israel’s deterrence toward its enemies. No need to get overly excited by talks to that effect in Iran, for example, but much

more attention should be given to what they do, which is to prepare the possibility of a multi-front attack on Israel, a scenario which is taken seriously in Israel for the first time in years.

The protest and, in particular, the repeated outcry that Israeli democracy is in danger dramatically weakened one of the main lines of Israeli diplomacy: Israel being the ONLY democracy in the Middle East. The ”Dictatorship is about to befall on Israel” cry of the protesters may be an expression of a genuine concern, but it is exaggerated and surely premature and, in the process causing huge damage to Israel’s reputation, as well as to its foreign relations. The increasing tensions between Netanyahu and the Biden administration are the most dramatic and dangerous example of this state of affairs and will be discussed in my next article.

ET ZARA LEYAACOV … an old Jewish saying about bad times for the people of Israel, and bad

, if not VERY bad, they are. Israel is strong enough to overcome the crisis but may not prove to be strong enough to heal the wounds. We may be able to say that the current crisis is behind us, but less likely that we shall be able to say in good faith that the problems, tensions, and legacies which were exposed and displayed will also be behind us. For that to happen, we shall need much more time, much more patience, and above all, a sober realization of what the issues at stake are. Every real, fundamental process of societal and national recovery should start by being truthful about the gravity of the problems. Israel is not yet even close to that point, and the sooner it comes to that, the better for the state and the Jewish people.

Dr. Josef Olmert is a Senior Fellow at the Palm Beach Center for Democracy and Policy Research and an adjunct professor of Political Science at the University of South Carolina