Former Member of Knesset, Michal Cotler Wunsh, writes for the Jerusalem Press Club about the judicial reform, its opportunities and causes:
In an age of unprecedented freedom, in a turbulent digital reality, in which polarizing and divisive messages generate massive response and ability to impact, traditional Journalism as a “watchdog of democracy” is challenged. This is the reality with which younger democracies must contend. Unlike seasoned democracies, they don’t have the time to let constitutional and societal processes percolate. This is the contextual looking glass through which the current storm, threatening to tear the 75 year young Israel apart, should be considered.
Add to this the particular identity, history and the circumstances in which Israel’s Jewish democracy was founded. It was founded neither as a democratic State of all its People, nor as a Jewish Halachic State but rather, as clearly stipulated in its founding document – The Declaration of Independence – as the Nation State of Jews – an archetypal indigenous People returning to an ancestral Homeland after millennia of exile and persecution and committed to equality. Zionism – a 140-year-old progressive national liberation movement, anchored in thousands of years of identity, heritage, history, culture and faith and singularly committed to the return to Zion – succeeded against all odds in realizing the dream of generations. Timing being everything, the return to Zion conflated with the aftermath of the Second World War, including the horrors of the Holocaust, as well as with global mass migration, among them the gathering of Jewish exiles from around the world in Israel.
From the moment of Israel’s inception in 1948, Arab rejection to accept it, in any borders, resulted in war after bloody war, threatening to annihilate the single Jewish democratic State. Where conventional wars failed, an unconventional war for global public opinion was waged, co-opting and weaponizing foundational principles and the secular religion of the 20th Century – human rights – to systematically demonize, delegitimize and apply double standards to Israel. In an Orwellian inversion, this war ensues in and by the very institutions, mechanisms and organizations critically mandated and entrusted to ensure equal and consistent application of such principles, collapsing the entire infrastructure. Applying irrelevant social constructs and judging Israel through myopic prisms that fit other circumstances, without taking into account its particular identity, reality, history, threats and challenges, hampers vital understanding of what the Jewish democratic State of Israel is all about. It skews the ability and responsibility to diagnose her root challenges. It thwarts the ability and responsibility to identify historic opportunities and to create holistic, long-term solutions, from each and every aspect.
Internally, the development of an ethnically and religiously diverse society comprised of varied communities, of an ancient people returned to sovereignty after millennia of displacement, of the creation of democratic foundations including checks and balances in a challenging security reality etc., made for far from ideal ‘lab-conditions’. In this context, and in the face of its’ multi-dimensional implications and manifestations, the Israeli Supreme Court initiated and championed a ‘Constitutional Revolution’ in the 1990’s, with the intention of gradually anchoring a complete Constitution. For decades staunch critics, including Supreme Court Justices and significant legal scholars and figures, cautioned of judicial overreach and extension of authority, breaching among other things the delicate balance between the judiciary and legislative branches.
In that sense, with revolution often resulting in counter-revolution, a pendulum swing in the other direction should be no surprise. The irony is that with all the clamour and opposition to the proposed Reform, it has been largely overlooked that in fact, contrary to popular opinion mere months ago, the majority of Israelis are actually united in the opinion that reform of some kind is necessary. The much-needed nuanced discussion that should ensue is drowned out by the cacophony of real and generated anxiety, distrust and fear, intersecting with festering unresolved societal issues and fundamental disagreement on the heart and soul of Israel’s founding mission, vision and values as a Jewish democracy.
And then there’s the Prime Minister, Benjamin Netanyahu, Leader of the Likud party – the biggest party in Israel, and of the few that have any semblance of democratic mechanisms. Representing a significant population in Israeli society, an ongoing boycott of this legally elected leader bans a largely moderate Public from representation that reflects their vote in general elections. In a long process culminating in five elections over a 3.5-year period, this huge Public is barred from forming a natural unity coalition, effectively disavowed by parties that in the name of democratic principles, in fact lack democratic mechanisms, practices and conduct. Among the short, mid and long-term implications of a de-facto silenced moderate majority, frustration and distrust are growing, as well as the empowerment and disproportionate growth of the extremes. Worse is the gradual weakening of the Knesset, not only in its legislative capacity, but in its critical role of supervising the executive branch, further compounding tension and compromising checks and balances.
It is against this nuanced, intersecting, complex, multi-layered background that the current storm rages – presumably about reform or revolution, depending on the eye of the beholder – but in fact loaded with, projecting and channelling much, much more. And we didn’t even mention the “regular” issues of ‘life itself’ dominating the Israeli Public agenda, as they do in every other country.
In its 75 years of miraculous existence, Israel’s relentless existential threats and urgent challenges, consumed, distracted and prevented recognition, prioritization and addressing of ‘regular’ important issues, now turned urgent. As often happens in our young, exhilarating country, an explosive time has come to change this unsustainable pattern, challenging existing axioms and paradigms, transitioning from the initial nation-building phase into a no less vital second-tier construction of systemic, long-range infrastructure, policies and plans for our future.
Like every ‘good crisis’, this one too harbours great potential. Realizing it requires each and every person to turn down the flame according to their ability, as a first critical step, rather than fanning and fueling the fire that threatens to consume us all. It requires wide public support for compromise, holding political representatives to account with clear expectation that they engage, discuss and work out the details of reform. Recognizing that compromise was and remains at arms-length, it can and must entail a middle-of-the-road legislative reform that simultaneously ceases the ’end of democracy’ campaign. It can and must be based on the multiple efforts to create compromise frameworks, including, though not limited to, the President’s. It can consider implementing the idea of the “People’s Framework”, holding a public referendum on the agreed upon proposal.
Identified and realized, it can be the first step of the next chapter of our continued journey, restoring the trust and mutual guarantee that acts as the ‘iron dome’ of Israeli society. Finally, it can renew our shared covenant to Israel’s founding vision, mission and values, as expressed in the Declaration of Independence, renewing the hope – Hatikvah – that requires action and courage.
Michal Cotler-Wunsh is a lawyer, research fellow and policy and strategy advisor. She served as a Member of Israel’s 23rd Knesset, co-founding the International Bi-Partisan Task Force to Combat Online Antisemitism