The recent passage of legislation by the Knesset to limit the authority of Israel’s Supreme Court signifies a significant shift for the country. This development goes beyond the legal implications and highlights the damage caused to Israeli society. The bill, which focuses on curtailing the Court’s power in administrative review, restricts its ability to overturn actions it deems unreasonable.
In most democracies, courts possess powers of both judicial and administrative review. The reasonableness doctrine allows the Court to strike down decisions based on conflicts of interest, procedural improprieties, exceeding legal authority, discrimination, or patently unreasonable actions. While many in Israel’s political opposition would have been open to a consensus-based approach to constitutional reform, the Netanyahu coalition’s efforts are far from it.
Prime Minister Benjamin Netanyahu, known for his caution, has managed to further fracture Israeli society in just seven months, exposing the deep divide between his supporters and opponents. This has led to widespread protest from various sectors of society, including business leaders, academics, and medical professionals. Notably, a significant number of military reservists have announced their intention to stop volunteering, which has potential implications for military readiness.
The reservists’ protest has been viewed differently by the government’s supporters and opponents. Supporters see it as a betrayal of the common Israeli code, while opponents see it as a sign that the Netanyahu government is eroding that code. This speaks to a greater breakdown of the social contract, with the fear that the state can come undone if not fully democratic.
The situation in Israel can be explained by the extreme positions taken by members of the Netanyahu cabinet. Military personnel, who rely on the political leadership and state institutions to issue morally defensible orders, are now uncertain whether senior cabinet ministers may order them to commit war crimes. This untenable situation has raised concerns about the erosion of the social fabric.
Additionally, a constitutional change pursued by Netanyahu’s government is a major issue. A small or temporary majority should not have the power to make sweeping changes to a country’s constitution. The integrity of the polity should be safeguarded through seeking consensus and exercising self-restraint.
Furthermore, majoritarianism must not be confused with democracy. Democracy encompasses the rule of the people, including the minority, and is not a license for the majority to do as it pleases without checks and balances. Good intentions are not enough; institutions, constraints, and the rule of law are essential.
Israel must prioritize the messiness of real democracy rather than relying solely on good intentions. Constitutional arrangements require the protection of institutions, constraints, and the rule of law. Limiting checks and balances can lead to far worse consequences, as seen in the control Israel exercises over the lives of Palestinians in the West Bank.
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