Danger: Constitutional crisis ahead

The judicial reform and the protest movement are headed to a historic junction where the Supreme Court will have to decide if it is going to create even greater chaos, or whether to show responsibility and pull everyone back from the brink.

By  Dror Eydar, ISRAEL HAYOM  29.6.23

1. Is Supreme Court President Esther Hayut planning a constitutional crisis? Will she cross the red line and dismiss Basic Laws or declare incapacitation of a sitting prime minister? For 30 years, MKs mostly remained silent in light of the erosion of the Knesset’s standing and the Supreme Court’s dismissal of laws it had passed without any explicit legal authority to do so – it does so only through the power of its own controversial interpretation. The Aharon Barak school of thought took upon itself the authority to oversee the laws passed by the Knesset through its own powers – as if “God is the Place of the world, and the world is not the Place of God.”

Now the justices wish to criticize the Knesset even when it sits as the constituent assembly. By virtue of what and by whose authority? The method is as follows: the possibility of dismissal is inserted in a ruling, but the law is still not dismissed. Then, at the right moment, the ruling is cited as precedent, and it is that precedent that is relied on. If they are not prophets, then those sitting in Givat Ram are sons of gods. But what about the truth, what will happen to the truth? And public trust?

I too wish to see judicial oversight, so long as it is restrained. All three branches of power should be subject to oversight, but who will oversee the court? What prevents the court from doing as it pleases? For example, dismissing the public’s legally elected representatives, or dismissing Basic Laws after having previously ruled that these laws constitute chapters of a constitution. What will prevent the Supreme Court from dismissing the Law of Return on the grounds that it contravenes Basic Law: Human Dignity and Liberty?

2, The general public is watching on as this fight takes place and does not know what to do: It sees the commotion out on the streets, the selective enforcement with one rule for the privileged and one rule for everyone else,  the profanity and violence against those who think otherwise, the gagging of voices in academia and the media, the cruel harassment of the children of MKs who are subjected to cries at point–blank range that their parent is the source of all evil in the world, the damage dealt to trust between security forces and civilians by the threats to refuse to show up for reserve duty and protect those civilians, the arrogance and condescension shown by those who believe that their voice and their vote is worth more than that of others because of their contribution or pedigree – and is amazed at the turmoil it sees.

I read the latest speech by the self–proclaimed Joan of Arc of the protest movement. Supposedly serious people saw this as a seminal speech; I saw superficial speech, full of false rhetoric about the opposing political camp, and mostly empty of historical and Jewish context. The cliché that is voiced over and again in the speech is “democracy,” which in her interpretation is not respecting the decision of the majority, but portraying half of the people as “Kahanists” (right-wing extremists) while talking about “freedom, justice, and equality.” The only thing missing is the guillotine. She ended with a statement by the late Menachem Begin, implying that the protest did not seek to preserve her social status, but is also fighting for Begin’s supporters. Her spiritual ancestors labeled him with the same derogatory nicknames she is now applying to his political successors. In a poster published by Mapai (the precursor to the Labor party) during one of the first elections in the nascent state, Begin appeared raising his arm alongside Benito Mussolini giving the fascist salute. The caption read: “Same form, same content.” It is doubtful whether our little revolutionary is also familiar with this brief historical chapter.

3. Here’s another pearl of wisdom that says a lot about the leadership of the protest movement – one that has been repeated in a thousand variations. Avinoam Brog, the brother of former prime Minister Ehud Barak, the protest movement’s puppet master, tweeted a response to a Likud activist whose parents came from Morocco: “If your parents had come here before the birth of the state, if they had dried out swamps, fallen ill with malaria, fought the British, and buried 6,000 dead in the War of Independence, then you too would be allowed to steamroll whoever you want. But your parents sat on the fleshpot and were tailors and cobblers to the king and waited for my parents’ generation to build you a state.” We have seen in the past racist speeches that treated Likud voters as mob, so these words were not born in a vacuum. Just like the revolutionary from Kaplan’s speech, here too, Brog’s words were belligerent and devoid of historical perspective. In translation, what they said was that the country belongs to us, and we will steamroll you. Democracy?  I presume that Brog is aware of the history that preceded the socialist avant-garde of the Second Aliyah (the beginning of the twentieth century) – hundreds of years of pioneering immigration that created the infrastructure for Zionism and the state. This historical revisionism that erases entire chapters of Zionist history is unfortunately not at all new.

Another jewel, this time from the entrepreneur and former air force pilot Kobi Richter, whose contribution to Israel’s economy and security is significant and undeniable, but who thinks that for this reason, he can declare war on half the people. Richter put it this way: “I support a determined and uncompromising war until we eliminate this scourge… Without a doubt, this will end in our victory… In our case, which has no parallel in other countries, we, who are protesting, are the security forces of this country, we are its economic power… We are the solution for the country, not the government. There is no way in the world that we will be defeated…” Richter is talking about an ancient people whom he has been given the right to be a member of and to whom he has no right to condescend. This nation is stronger than all its financial and symbolic wealth combined. Richter should add a deep Jewish perspective to his historical and sociological analytical toolbox; doing so may temper his arrogance. His feudal view does not present a solution for the state, it is the state’s problem, and it will distance him and the protest movement from the public it purports to redeem.

4. Up until now, the protest has been a mainly one-sided affair. The ordinary people – supporters of the current coalition, who hold only a small portion of Israel’s national wealth, are barely represented in academia, the media, IDF special forces, large firms, advertising companies – have remained mostly silent. But that is until the moment the only thing they have – their voice and their vote – is taken away from them. This can be done through humiliation and terrible words like those we gave as an example above, and it can be done legally, for example via a respectable debate in the Supreme Court in which the judges decide to take away the powers of the sovereign, namely the public, to influence the future of this good land through its elected representatives in the Knesset, either by dismissing a Basic Law or by declaring the democratically and legally elected prime minister as incapacitated.

If the people’s voices are gagged, the masses humiliated and their vote taken away, in the end, there will be a constitutional crisis that will lead to chaos and violence in the streets and then to irresponsible statements by senior defense officials – backed by the media – that they are “obeying the law,” namely the Supreme Court, even though there is no law that gives the court the authority to debate Basic Laws. The public will not remain indifferent. The weekly commotion at Kaplan will be like child’s play compared to this terrible possibility. Where are we headed to?

5. In the bubble of the media and protest movement world, it may seem that the court has the support to do as it pleases. However, the judges should not look to their social circle for mediation of reality; they should be finding out about the unrest that is about to erupt in districts they have no knowledge of – there are many such places, and they are for restraint of the court.

That is a hole we will be hard–pressed to dig ourselves out of. But today, we are all The House of Joseph, and like him, we find ourselves in the hole, so we will have no choice but to dig our way out together. Throughout history, we have been thrown into many pits together: Not all of them we got out of, and when we did manage to make our way out, we didn’t always manage to do so on time. Will Supreme Court President Esther Hayut have the integrity and historical perspective to decide that she must not throw us into the pit?