Even in the sweltering summer heat, when the pace of life normally slows down, things happen rapidly in Israel. In a short time, we’ve deteriorated from being a vibrant and flourishing country, despite its many problems, to being a step away from, God forbid, civil war – actual, not symbolic, civil war. Dystopia is teeming in the streets, in the Knesset, and in the minds of many citizens. The world looks on agape – some with concern, some with joy.
Was Hezbollah leader Hassan Nasrallah right when he called Israel “weaker than a spiderweb”? Nasrallah once referred to Israeli strength and resilience in the face of external threats, but now it seems that this resilience is crumbling under the weight of internal wars. The Israeli body attacks itself, stricken with an autoimmune disease that could soon become terminal.
The dispute over the reasonableness standard is a relatively insignificant footnote to a longstanding disagreement over the division of power among Israel’s branches of government. But even this dispute is just the tip of the iceberg compared with the deep divisions in Israeli society, divisions that extend along different tectonic fault lines: Right versus Left; religious versus secular; conservatives versus liberals; the ultra-Orthodox versus those who bear the burden of IDF service; Sephardim versus Ashkenazim, and so on. The members of a fading hegemony, who contributed their blood, sweat, and tears to the country, now feel threatened by new social forces.
These fault lines are not new, but they erupted to the surface with great force in recent months when a new governing coalition attempted to decide the conflict unilaterally and immediately. This was possible because the normative platform that exists in most other countries – a constitution that establishes the rules of the game and shields them from change at the whim of a simple majority – does not exist in Israel. Here, unfortunately, the winner can take all – and this time, the winner did decide to take all, or at least try. The unilateral attempt released the pent-up energy of societal rifts, and the aftershocks can be felt from Kaplan Street in Tel Aviv to Kaplan Street in Jerusalem.
On these streets, named after a Zionist activist who was one of the signatories of Israel’s Declaration of Independence, Eliezer Kaplan, the vertebrae of our sovereign backbone are located – the offices of government, the Knesset, and security forces. In the last six months, they have become the arena where the two camps of the nation wrestle, and the backbone can be heard cracking.
In the canyons of the Israeli clash are the echoes of global trends. But the crisis in Israel is on steroids: the Jewish DNA of argument; the absence of a political tradition after 2,000 years of exile; deep disputes over the vision of the state; a broken political system that bolsters the power of extremist groups and grants activists veto power; and, above all, a tragic lack of codified rules of the game to manage the power balance between government branches – the absence of a “thin constitution.”
Israeli unity has been shattered and must be repaired
We need to face facts: Israel was a “consensual democracy,” built on a central narrative shared by most of its citizens. We had a safe harbor, the Israeli yachad, or “sense of togetherness,” from which we sailed into the rough seas of controversy and returned at the end of the day to anchor at the stable dock of solidarity. All this may disappear if Israel becomes a “democracy in crisis,” whose citizens are constantly fighting for control of the public sphere. As long as the port is closed, the ship of state, tossing on the open sea, storm after storm, will have nowhere to return.
Surveys show that most of the Israeli public supports modifications to the judicial system, provided they are introduced in a balanced and consensus-based way. This fact should have been decisive. And yet, our leaders do not adhere to the clear will of the people. The unbridled power of senior coalition members drags the other side into despair and drastic measures. A cultural disaster is unfolding before our eyes: the Israeli political center, which includes many who are classified and identify as either “Right” or “Left,” is undergoing a radicalization process. The tumult of the extremes opens its mouth and threatens to swallow them along with the entire nation. It is difficult to overstate the danger of this process. The writing is on the wall: Soon, may we be proven wrong, it will come to brothers raising hands against each other, literally.
The radicalization of the Israeli center is reflected, among other things, in broad support among former high-ranking security officials for refusal to serve – in all its shades of gray. That is a doomsday weapon that could potentially be a tiebreaker in any future public dispute. This means mortgaging a supreme public asset – the IDF’s very existence as a people’s army, and its competence as a functioning military – for the sake of an immediate resolution to a dispute. Let it be said clearly: This is a recipe for disaster.
We are not advisers on protest methods, but it seems to us that rather than deploying this unconventional weapon, other effective and powerful measures might be taken to topple the walls of opacity and achieve the desired results, without harming national interests. There is a broad array of nonviolent actions that are vastly preferable to the rants of former senior officers and chiefs of staff invoking “any means necessary.”
It is not only the protesters whom we are addressing. There is a broad, responsible group of citizens among those who voted for the coalition parties who put statehood first. They can be expected to join the demand that their party leaders take the path of consensus, not of coercive edicts; they will do this out of an understanding that this is how changes are best made to a political system, and out of sensitivity to the pain and authentic concerns of the other side. Many on the Right have been reminding us, and are themselves scarred by the memory, of the Left’s lack of empathy during the Gaza disengagement. Still, in this time of emergency, it is appropriate for the state-loving Right to stop settling old scores over past injustices and to join a powerful but peaceful protest movement demanding consensus. If this comes to pass, then, just as the overwhelming majority of the Right did not refuse to serve in Gush Katif or along the fences of Kfar Maimon (where a large anti-disengagement rally was held in 2005), so now will they succeed in preventing refusal to serve in Tel Aviv and Ramat Hasharon.
And perhaps, the heart wants to believe, the ultra-Orthodox will also join hands with the general public, out of a deep understanding that this is a situation of national pikuach nefesh – a matter of life and death.
Another aggressive position that should be avoided is relying on the Supreme Court and fostering an expectation that it will strike down the new Basic Law, and pull the chestnuts out of the fire for us. That would be a mistaken and dangerous move, both legally and socially. There is a reason why no Basic Law has ever been repealed in Israel. In the absence of a constitution, the legal basis for nullifying an ordinary law is the “limitation clauses” contained in the two Basic Laws of 1992: “Human Dignity and Liberty” and “Freedom of Occupation.” Scholars debated whether the Supreme Court was indeed given express authority under these Basic Laws to invalidate ordinary laws, but eventually this concept was accepted and took root in our legal system. However, there is no basis for the court`s authority to invalidate Basic Laws. It cannot “pick itself up by its bootstraps” and confer such authority upon itself out of thin air.
The court’s lack of authority to subject Basic Laws to judicial review was the legal consensus for generations, from the enactment of the Basic Laws; this view found clear expression in the rulings and writings of Supreme Court chief justices and judges. However, in recent years legal theories have developed according to which, in highly exceptional cases, a Basic Law may also be invalidated, based on the determination that it amounts to an “unconstitutional constitutional amendment” when it undermines the “core values of the system” or when “the Knesset abuses its power as a constitutive authority.”
The debate over the validity of these theories lies beyond the scope of this article. It is critical, however, to emphasize that the invalidation of a Basic Law by the Supreme Court would be a grave societal error. It can be assumed, with a high degree of certainty, that such an unprecedented decision would not be the final word. The coalition majority would unite and rise up against what it would regard as a “complete violation of the rules of the game.” The Knesset might respond with explicit legislation divesting the Supreme Court of the authority to nullify Basic Laws. Again, the petitioners would appeal and the court would reject, in an endless cycle. The result would be constitutional chaos, whose beginnings are already visible but whose ultimate outcome is unforeseeable.
The tendency to place our faith in the Supreme Court on various issues has already caused great damage to its stature and to the public trust in it. The idea that judicial decisions on explosive core issues will heal the rifts is naïve and dangerous. The responsibility in these matters lies with society and the political leadership, not with the court.
Instead of refusal to serve, violence, and wrangling between the Supreme Court and the Knesset, we need patient and resolute action capable of mobilizing an “alliance of moderates” from both sides of the political spectrum. This alliance of moderates would free Israel from the grip of the extremist fringes that currently dominate the public discourse and direct the decisions of our leaders. A joint opposition of the broad center to unilateral legislation, spanning Right and Left, while sincerely striving for consensus-based amendments and changes, would leave the bridges between us standing once the present crisis recedes. Neither side should imperil Israel’s future for the sake of a momentary victory.
If, as in the Judgment of Solomon, both sides are sincere in their claim to be the “true mother,” then they must forgo the fervor of desire and keep the baby – the nation – intact. If we manage this, there is hope of escaping destruction and achieving reconciliation. ■
Yedidia Stern is president of the Jewish People Policy Institute and professor of law (emeritus) at Bar-Ilan University. Adv. Raz Nizri is a former senior deputy attorney-general, and currently heads the Department of Public Law, Regulation and Crisis Management at M. Firon & Co. Advocates.