And so, it has come to pass. With eyes wide open the coalition launched the first stage in its judicial overhaul. The “salad bar,” in the words of one senior minister, is open, and the “main courses” will follow soon.
The process by which the amendment to the Basic Law: The Judiciary was passed, releasing the government and its ministers from the duty to act with reasonableness, is the best possible evidence for what we can now expect.
On live television, we witnessed a procedure that was rapid, aggressive, and heavy-handed, and that demonstrated that there was no intention at all to listen to those who appeared before the Knesset Constitution, Law and Justice Committee. No willingness for discussion or compromise with members of the opposition, or to make changes to the wording of the bill, and no consideration for the interests of the State of Israel.
This government is simply not prepared to listen
Not to hundreds of thousands of protesters, not to hi-tech industrialists, not to the leaders of the business and financial sectors. Not to doctors, scientists, jurists, lawyers, heads of universities, or senior academics. Not to all the heads of the security services, past and present, nor to senior IDF officers and the reservists who volunteer in various IDF units. None of these were of any interest to the members of the coalition; none of these prevented them from passing into law a dramatic change to Israel’s system of government.
Yes, the Law to Cancel the Reasonableness Standard could be the first stage in the decline of Israel’s democracy. It is not some “small matter” which “restores checks and balances.” Rather, the amendment dramatically strips away the checks put in place to prevent the government from being able to wield absolute power. It is thus a huge change, and one that deals a serious blow to the fundamental values of Israeli democracy.
A government that strives for unlimited power must start somewhere. Democracies do not die in one day, or with a single law, but rather are systematically eroded over time. The reasonableness law could be the first step in this process.
Revoking the reasonableness standard is a blow not only to fundamental democratic values but also to the proper functioning and incorruptibility of the administration, the State’s obligations to its citizens, and the rule of law. The amendment gives the government a green light to make arbitrary decisions and act with unlimited power, for example in the hiring and firing of officials and gatekeepers. It makes it possible for the government to dismiss the Attorney General, and along with her any of the gatekeepers who do not immediately align themselves with the will of the regime. The government and its ministers can make extreme, unfounded, or even corrupt decisions and appoint whoever it wants to the most senior positions.
Now, the amendment will be brought before the Supreme Court, which has all the necessary tools to revoke it.
The Knesset does not have unlimited authority to pass and amend Basic Laws. Indeed, in a democracy, there is no such thing as unlimited power. According to past Supreme Court rulings, there is one restriction on the Knesset when it seeks to pass or amend a Basic Law: It cannot revoke or severely infringe on the “core characteristics” of Israel as a Jewish and democratic state.
And if it does so, the Supreme Court can intervene and even strike down such legislation. In the Edelstein case (when speaker of the Knesset Yuli Edelstein refused to convene the Knesset plenum to elect a new speaker, despite a request from 61 MKs), Supreme Court President Esther Hayut ruled that “where there is an unprecedented infringement of the rule of law, then unprecedented remedies are called for.” This sentence would seem to apply to the current situation as well.
The plan to alter the face of Israeli democracy goes far beyond the reasonableness standard. It also includes the Judicial Selection Committee, the override clause preventing the Supreme Court from revoking Basic Laws; turning civil-servant ministerial legal advisers into political appointments; and imposing restrictions on the free press, academia, the Israel Bar Association, civil society organizations, women’s rights, and more. All these are now on the Knesset’s agenda.
But the government’s immediate goal – like other populist regimes around the world such as Poland and Hungary – is first to do away with judicial review and judicial gatekeepers, so that it can gain unrestricted power. After that, hollowing out democracy becomes much easier.
The legislative process that concluded last night teaches us an important lesson: This is exactly what the tyranny of the majority could look like. This is what a regime that aims to destroy democracy and seize power for itself looks like. This is what the changes to come could look like. Now it’s up to us.
The writer is vice president of research at the Israel Democracy Institute.