It seems that the ruling handed down this week on the grounds of reasonableness briefly threw Israeli society back in time to a different reality. A reality replaced by a sword on one damn day in October. From a divided and divided society, we have reluctantly returned to what we really are – a united people whose sons are willing to give their lives for the nation.
On the day the verdict was published, I visited four bereaved families. Nobility, salt of the earth. They all told me the same thing: Just maintain unity among the people. A week ago I spoke to a reservist from Khan Yunis. He told me a harsh statement: "When I leave for Israel, I want to go back to Khan Yunis. Here we are all fighting together and ready to die for each other, in Israel there are only fights."
The timing of this verdict is miserable. The controversy over the abolition of the grounds of reasonableness in particular, and over the legal reform in general, which blew its soul, divided Israeli society, tore it apart from within. Sinwar, may his name be forgiven, thought that in light of the rift over the reform, Israeli society had lost the ability to fight. Well, he made a big mistake. IDF soldiers fight side by side with a tremendous sense of mission.
A resident of Otniel is willing to die for the people of Bari, a Kaplanist is willing to die for a Bibist. This is the reality in Gaza, a tribe of brothers alike in the full sense of the word. And it must also be said that this generation is even braver than the generations before it. October 7 provided stories of heroism and many decorations of courage that will still be given to soldiers and civilians who risked their lives with heroic deeds. Some, as is known, paid with their lives while saving dozens of people. I met Israeli hero Avigdor Kahalani at one of the mourners' condolences. We both agreed that this generation was no less courageous than the Yom Kippur War generation, and that on 7/10 there were dozens of heroic stories like the Valley of the Beka.
A predatory ending chord
I would prefer to write about my moving and powerful dialogues with the bereaved families in their most difficult hour, or about the achievements required from the war and the day after, but once the verdict is handed down, I should address it.
This unprecedented ruling strikes a predatory ending chord to a period that began with Aharon Barak's constitutional revolution back in the 90s. In fact, the dismal "achievement" of the current right-wing government is another constitutional revolution by the liberal-progressive wing. During the period of the Constitutional Revolution, a conception emerged according to which there is only one legitimate position in the various forms of Israeli law, both in the court system and in academia. Voicing another opinion was perceived as blasphemy and denounced from the discourse as lacking legitimacy.
This week we witnessed the dying fruits of a legal concept that has no parallel in the Western world. The majority justices did not suffice with turning the court into the ultimate arbiter of matters of policy and the invalidation of laws – they went so far as to empower the court with their own hands to determine the constitutional arrangements of the State of Israel. If until now they claimed that they were merely implementing the constitutional principles established by the elected officials, now they have cut off the branch on which they sat and decided to reject those constitutional arrangements established by the elected officials on the grounds of abuse of constituent authority and severe and unprecedented harm to the nuclear characteristics of the State of Israel as a democratic state, particularly the principles of the rule of law and the separation of powers.
The minority justices were right in arguing that there is no harm to the core of democracy here. The State of Israel was a strong democracy before the law was passed, and remained so even after the law was passed. As any first-year law student knows, the court has many other grounds for judicial review of government decisions, just like in other Western democracies. Even in the incapacitation verdict, we witnessed verbal exercises and legal acrobatics that merely represent a political worldview. After all, in the ruling of the replacement government, the majority justices knew how to live with personal legislation in its clear definition.
A historic opportunity for change
But it is also the dawn of a new day. Facing the group that clung to preserving the institution as a super-government was a bright conservative camp. This is reflected in the two rulings handed down this week. With the imminent retirement of Justices Hayut and Baron, for the first time the Supreme Court will enjoy a majority of justices who respect the separation of powers in Israel. Judges who recognize the supremacy of the rule of law over all branches, including the judiciary. The next justice minister will have to continue what I started, appoint at least one justice who belongs to the conservative camp, and thus effectively change the majority of the Supreme Court for the first time in the history of the State of Israel.
The next Knesset will have to enact Basic Law: Legislation by broad consensus and define by which majority the justices of the Supreme Court can invalidate a law and what is a Basic Law, by which majority it must be passed in the Knesset, and by how many readings. Many justice ministers, myself included, circulated memoranda of such a law and tried to reach agreements, without success. I think that because of the great rift created over the past year, the time has ripened to reach an agreement on this issue. There is unanimity in both camps that it is the Knesset that should define the relationship between it and the court.
A conservative revolution came to the world through hard work, step by step, through an evolutionary process – not pompous declarations and inaction. The results speak for themselves. All you have to do is look straight at reality.
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