Israel’s president proposes a dangerous compromise to end a crisis

Israeli President Isaac Herzog leaves the White House after meeting with President Biden on Oct. 26. (Tom Brenner for The Washington Post)
Israeli President Isaac Herzog leaves the White House after meeting with President Biden on Oct. 26. (Tom Brenner for The Washington Post)

“Haste is from the devil”, says an Arabic proverb commonly used in Hebrew. It correctly describes the campaign by Prime Minister Benjamin Netanyahu and his henchmen to undo liberal democracy in Israel. Alas, it’s also an accurate critique of Israeli President Isaac Herzog’s proposed compromise, which he unveiled last week.

Netanyahu returned to office less than three months ago. He has treated his reelection as a mandate to change Israel’s political system fundamentally. In the Knesset, his coalition is rushing through a package of bills that would essentially transform the country into an elected autocracy.

Among the measures are ones that would put the appointment of judges and Supreme Court justices entirely in the hands of the ruling party, while restricting judicial review of laws and government actions — and allowing parliament to overrule court decisions.

In equal haste, seemingly in panic, Herzog rushed out his proposed compromise. Hatched in closed rooms, it cedes far too much ground to Netanyahu’s plans and would weaken Israel's already fragile democracy. Opposition leaders who endorsed Herzog's proposal without taking time to consider its consequences made a potentially fateful error.

Herzog, in a televised speech on March 15, warned that the country was “within touching distance” of civil war, of “blood in the streets”. But Herzog’s picture of impending civil war falsely portrayed two sides at each other’s throats, equally responsible — equating the attacker and the attacked.

In reality, a large part of Israeli society has taken to the streets, nonviolently, to defend the democracy to which it owes allegiance against a high-speed legislative coup.

Justice Minister Yariv Levin and Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee, originally sought to steamroll the government’s judicial reforms through parliament before the Passover holiday early next month. In the wake of the escalating protests that followed the government’s proposal, Herzog decided he had to step in. His answer was to compose a compromise — an outline for the written constitution that Israel lacks, and that he said he hoped would reflect the “greatest possible common ground” between the opposing camps.

But Herzog has either misread or deliberately misrepresented the current crisis. Asserting that “structural changes are required in the relations between the branches of government”, he implicitly accepted the Netanyahu camp’s false premise that the Supreme Court has taken too much power, unduly hemming in parliament and the government.

In fact, the court has provided a cautious check on executive and legislative power. In January, it did disqualify Aryeh Deri — leader of the ultra-Orthodox Shas party, thrice convicted of financial offenses — from heading a government ministry. If the coalition passes a law giving Netanyahu immunity from prosecution — thereby ending his ongoing corruption trial — the court might overturn it.

Netanyahu, Levin and Rothman have decided to render the courts tame and powerless. If they succeed, the most right-wing coalition in Israeli history could follow with laws harming the rights of women, the Arab minority, LGBTQ citizens and the press. A lawmaker from Netanyahu’s Likud party has already submitted a bill aimed at disqualifying prominent Arab politicians from running for the Knesset.

Herzog called his proposal “the people’s directive” and said he had consulted “thousands” of people in recent weeks. Yet those conversations took place in closed rooms, and his choices of whom he consulted are opaque. That’s no way to write the framework for a constitution. The result reads as a rushed draft of an out-of-court settlement — a bit for the weaker side, and more for the stronger side.

Accepting that the judiciary has cavalierly overturned laws, Herzog would require a majority of eight out 11 Supreme Court justices to do so. The court would no longer be able to overrule ministerial appointments as “unreasonable in the extreme” — allowing Deri’s return to the cabinet, and future corrupt appointments. Judicial oversight of a vague category of “policy" decisions by the cabinet would likewise be restricted.

On the positive side, Herzog rejects letting parliament override the court. However, he’d exempt “basic laws”, those with constitutional status, from judicial review. Such laws could be enacted with a supermajority as small as 70 out of 120 Knesset members. Herzog’s proposal also requires a supermajority to rescind some existing basic laws — including the notorious nation-state law, product of a previous Netanyahu government, which could legitimize discrimination against Arab citizens.

Another positive piece of Herzog’s plan would give constitutional status to the right to equality and to “freedom of expression, opinion, demonstration, and assembly.” Glaringly missing is religious freedom — a lacuna likely to protect religious coercion, including the state rabbinate’s control of marriage and divorce.

Herzog rejects the government’s plan to give ruling parties total control of judicial appointments. But his proposal grants politicians the majority on the judicial appointments committee. As legal commentator Ido Baum writes, the likely result is that political horse-trading will overshadow legal qualifications. And if a future chief justice is allied with the coalition, together they could control all appointments.

Netanyahu and his partners quickly rejected Herzog’s proposals. Anything short of complete control of a powerless judiciary won’t satisfy them. The leaders of five opposition parties, on the other hand, accepted it as “realistic”, though imperfect. Their response, too, was bedeviled by haste. If Netanyahu and his allies finally agree to negotiate, they’ll take Herzog’s plan as the opposition’s starting point — and demand more concessions.

Herzog should acknowledge that his effort has failed. He and opposition politicians should join the protest leaders in clear demands: The government must drop its legislation. Any effort to produce a constitution must take place openly, with time to consider consequences and with the goal of a stronger democracy.

Gershom Gorenberg is an Israeli historian and journalist. He is the author of, most recently, “War of Shadows: Codebreakers, Spies, and the Secret Struggle to Drive the Nazis from the Middle East”. He is a senior correspondent for The American Prospect and has written for The Atlantic Monthly and The New York Times Magazine, among others.

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