Day 95 — One good thing amid tragedy of Oct 7
October 7 was the deadliest day in the history of the modern state of Israel and the most tragic. But that tragic day paved the way for the Supreme Court to overturn a controversial judicial overhaul.
Massive Division
The last year was the most challenging year I have ever had here in Israel. The country was as divided as it has ever been in its short history. Israelis were leaving in droves for other nations. Investors were pulling out money as fast as they could. The shekel was losing value rapidly. Personally, I did not want to be here. Something nefarious was going on in the spirit, and I was deeply disturbed for months. A month before October 7, I told two different congregations that I felt like the Lord was saying that Israel was already under judgment for this division. And not just the division but racism. The average Israeli is not a racist, but in January, Prime Minister Netanyahu brought two unsavory characters into his government along with their parties.
When this new government came into power, it was not unlike what Kevin McCarthy had to deal with in America. His coalition was so small in Congress that he had to make deals with those who could bring him down at any moment. Netanyahu has created the same problem for himself as he brought some very distasteful zealots into his government to get him over the 60-seat threshold for a government. Most Israeli pundits believe that he could not afford not to be Prime Minister because he is on trial for three counts of corruption. He was counting on his coalition to pass a law to keep him out of jail.
Glorifying Terror
You may or may not have heard of the names Itamar Ben Gvir and Bezalel Smotrich. They are religious Zionists whose views are considered racist by most Israelis. Until recently, Ben Gvir had a picture of Baruch Goldstein in his office, who murdered dozens of Muslims in cold blood in the 90s. Smotrich was accused of seeking to carry out a terrorist attack when he was caught with 700 liters of gasoline in his car in 2005. They are on the far-right fringe. They say incredibly provocative things and cause Prime Minister Netanyahu endless headaches. But he rarely rebukes them because he knows he cannot survive without them. His small coalition of 64 seats would fall apart.
One of the conditions God gave us for inhabiting this land has to do with positive treatment of foreigners. “If you do not oppress the foreigner … then I will let you live in this place, in the land I gave your ancestors forever and ever” (Jer. 7:6-7). Having outright racists in our governmental cabinet limits the blessing of God on our country.
As someone who lives here, I do recognize how difficult it is to treat Arabs with honor while also fighting against a terrorist mentality. The Palestinian Authority still spends some $300 million a year on stipends for families of suicide bombers and other terrorists. That is an unacceptable reality. But there is a sizable minority, if not a small majority of Arabs that would like to simply have peace with Israel.
There is no more complicated conflict in the world. But as Jewish people, God has given us instructions on how to treat others who live in our land. Certainly, we don't tolerate terrorism, but neither should we label every Arab or Muslim a terrorist. It does not help things when Smotrich and Ben Gvir suggest sending Gazans to other countries. That goes against international law. And at the same time, we have to completely eliminate Hamas and show no mercy to terrorists. It is a task that no other nation would want, but it is our responsibility.
Judicial Overhaul
When this new government was sworn in, there had been talk about reforming the way Supreme Court justices are selected, but no one ever imagined taking away the Supreme Court's authority as a check on the Knesset. It was not a primary issue in the campaign. Justice Minister Yariv Levine, along with several far-right ministers, pushed through a three-prong initiative to virtually destroy the power of the Supreme Court to make sure that laws are consistent with Israel’s declaration of independence and international human rights.
Take away the “reasonableness” clause. This allows the Supreme Court to strike down appointments and other decisions that go against legal reasonableness. “Reasonableness” is not when a judge feels something is simply unreasonable personally. But a legal standard.
Change how judges are appointed, and add more politicians to the process unless they are lawyers.
Take away the right of the Supreme Court to overturn laws that they consider to be against Israel’s Basic Law (quasi-constitution) or international human rights.
Such a move would have changed the democratic nature of the country. At least that’s what 66% of Israelis felt. Nevertheless, they were hell-bent on pushing this legislation through.
A Basic Law is Anything but Basic
In July, with a 53% majority, the Knesset passed a Basic Law (part 1, above) saying that the Supreme Court would no longer have the authority to review the “reasonableness” of government decisions. Again, reasonableness is a legal term based on British common law. A Basic law in Israel is like a Constitutional amendment in the US, meaning it carries more weight than a regular law.
The problem in Israel is that you can pass a Basic Law with just a majority of the 120 Knesset Members. To pass a constitutional amendment, on the other hand, takes “a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.” It is not easy.
Very Unpopular
This move had little support from the public and sparked the largest weekly demonstrations in the history of Israel, at one point drawing half a million protesters. Ironically, this new law would come before the very Supreme Court that it sought to temper. They would rule on whether or not the law was legal. Last week, the Supreme Court ruled 8-7. But don’t let that close vote for you. Nearly all of the justices were concerned about the law.
“[F]ully 13 out of the full 15-justice panel that heard the case wrote in their opinions that the court did have the authority to review Basic Laws. And of the five justices who asserted this right but declined to strike down the reasonableness law, three expressed deep concern over the legislation and wrote that it should be interpreted in a narrow manner to preserve aspects of the reasonableness standard.”
NOW you are concerned about Unity?
The law's backers sharply criticized the Supreme Court for undercutting the country's unity during the war with their ruling. However, justice is supposed to be blind. It is on the politicians to unite the country they divided—not the courts. They clearly were not concerned about unity before October 7.
More Bad News for Netanyahu
The courts also struck down the so-called Incapacitation Law, which sought to keep the attorney general from declaring a prime minister unfit for office. This stems from Netanyahu signing an agreement not to involve himself in the judicial overhaul and then breaking that agreement by aggressively fighting for it. He signed the agreement because he stands to benefit from a weak Supreme Court, as his coalition could simply pass a law to keep him out of jail—even if found guilty. The justices were clear that they were not concerned with the law itself but that it was explicitly passed to benefit the current prime minister, which makes it a conflict of interest.
The overturning of the reasonableness law brings the Supreme Court and the ruling government into severe conflict. If not for the present war with Hamas, it may have sparked a civil war. I am not exaggerating, as many had been predicting this before the Hamas attack.
A Distracted Government
Some have wondered if the massive divisions in the country over the past year did not distract the government from the growing threat from Hamas. Only time will tell once there is a 9/11-type commission at the war's end. It wouldn’t be fair to blame the government entirely. The job of the IDF is not to be political but to protect the country. The intelligence shows that the warning signs were there but were ignored by the military and the politicians. There is no doubt that Hamas was planning this during the Bennett/Lapid administrations as well.
However, what is clear is that October 7, despite being the worst tragedy in the history of modern Israel, may have prevented the toppling of democracy in the Jewish state and a civil war. It definitely killed the judicial overhaul plan, which had divided the country for nine months. It is unlikely that there is political willpower from Netanyahu’s camp to fight the Supreme Court with the country at war and the majority of citizens agreeing with her ruling.
