Israel's Reasonableness Law: What it Means for Israel's Democracy and Security

AJC Chief Policy and Political Affairs Officer Jason Isaacson breaks down what Israel's recently-enacted judicial reform means for the future of the only democracy in the Middle East. The Reasonableness Standard Law will limit the Israeli Supreme Court's ability to review the "reasonableness" of government decisions. Isaacson also provides listeners AJC's perspective on the contentious bill and takes us beyond the headlines to show AJC's support for President Herzog's efforts to reach a compromise and what's next for Israel. *The views and opinions expressed by guests do not necessarily reflect the views or position of AJC. Episode Lineup: (0:40) Jason Isaacson Show Notes: Learn: What You Need to Know About Israel's Judicial Reforms Listen: Matti Friedman on How the 1973 Yom Kippur War Impacted Leonard Cohen and What It Means Today Follow People of the Pod on your favorite podcast app, and learn more at AJC.org/PeopleofthePod You can reach us at: peopleofthepod@ajc.org If you've enjoyed this episode, please be sure to tell your friends, tag us on social media with #PeopleofthePod, and hop onto Apple Podcasts to rate us and write a review, to help more listeners find us. __ Transcript of Interview with Jason Isaacson: Manya Brachear Pashman: This week in Israel, a majority of Israeli lawmakers, those in the governing coalition, passed the contentious and divisive reasonableness standard law, which will limit the high court of Israel's role to limit and overturn government decisions that seem unreasonable. The new law, the first of several proposed reforms to Israel's judiciary, follows 29 weeks of protests by hundreds of thousands of Israelis, and has sparked threats by labor unions to strike, by businesses to shift investments, by military reservists to decline to serve. Joining us today to explain what the passage of this law might mean for Israel's democracy is AJC chief policy and political affairs officer Jason Isaacson. Jason, welcome to People of the Pod. Jason Isaacson: Thank you, Manya. Good to be back. Manya Brachear Pashman: So Jason, for those listeners who don't quite understand the judicial reforms process in Israel, I want to steer them to our show notes to help them get up to speed. Here, I'd like to devote this time to what it means. But first I do have a fairly basic question. Would you please share AJC's perspective on the package of proposals? Jason Isaacson: Thank you for asking, Manya, when the package was put forward by the new governing coalition, the beginning of this year, we we met with senior officials of the government, including Prime Minister Netanyahu, and expressed concern that such an ambitious package should only advance with the broadest possible support in Israel if you're going to change fundamentally, the rules of the game and how Israel is governed, the balance of power, the checks and balances that exist between the legislative branch and the judicial branch. And you have to point out that in Israel, the legislative branch and the executive are virtually the same. They're in the same party. So it's the balance of power between the judiciary and the rest of the government. If you're going to make that kind of a fundamental change, you really need to strike a national consensus, the broadest possible consensus. So we encouraged the prime minister, and we also met with opposition leaders early in the year, and an urge that they get together and try to work out some kind of a compromise. It's not as though altering the system of government is a crazy thing. The Supreme Court, the High Court of Justice in Israel is an unusually empowered court. It has extraordinary power to strike down government actions. So it's not crazy. And then in the past, over the years, there have been other efforts to adjust it and adjustments have been made in this balance of power, the way the judiciary operates. That passed, there's a multistage process and passing legislation in the Israeli Knesset. If you're going to make these kinds of big changes, you really need to add, look, by the way, look, what's happened in Israeli society over the last 29 weeks, there have been protests every week, sometimes more than once a week, hundreds of 1000s of people have been out in the streets of massive display. Democracy has been on full display in Israel over this period. And it was very clear from public opinion polls, that many of these really public were not happy with this proposal and with the whole package, if it was going to be rammed through unilaterally, so unfortunately, it was pushed through unilaterally this one piece of the package. And now the question is, what happens next? Will we have other pieces move forward unilaterally? Will negotiations be reconvened? We have called for a reconvening of these talks under President Herzog, have met repeatedly with President Herzog and supported his efforts. And we're hopeful that will be where we end up. Manya Brachear Pashman: You mentioned that democracy was on display with the many protests. But some people have said the passage of this law means that democracy in Israel is at risk. So I'm curious what your take is on that. Is democracy at risk, and why is preserving democracy so important? What's at stake? Jason Isaacson: Well, Israel is a democracy, Israel will continue to be a democracy, there have been many exaggerated obituaries of Israeli democracy. I would like to put those to rest. I'm sorry, that was kind of a terrible pun. But in fact, in our country, there are tensions, we had an uprising on January 6 of 2021. People tried to take over the US Congress and prevent the transfer of power. We have huge polarization and divisions and tensions in our own democratic system. No one would dare to say that America is not a democracy, even with these challenges, even changing voting rights laws, and gerrymandering and all the other things that happen at the state level and the national level, to make alterations in our democratic system. We have our own system of appointing Supreme Court justices, and it's possible for a party in power to prevent the appointment of a justice and to ram through other justices on weird pretexts. So it's not as though we have a perfect system, nor does Israel and Israel has shown itself to have an enduring, deeply rooted democracy. I am confident that the democratic traditions in Israel will endure even with this change in the way the balance of power is going to operate going forward. And by the way, it also must be pointed out that even though the Supreme Court, the High Court of Justice in Israel, no longer according to the As law will be able to use the reasonableness standard, in other words to say that a government action, an appointment is unreasonable and therefore cannot move forward. It has other tools that it can use. It's not as though the Supreme Court has been completely denuded and deprived of its ability to counteract, to overturn, to change government policy. But it does weaken the process that the Supreme Court has been using in the past. And it is unfortunate that it was rammed through unilaterally, does that mean that Israel is not a democracy? By no means? Does that mean that more work has to be done to shore up Israeli democracy? Yes. And by the way, ours as well, and other countries in which there are these tensions in society. We all have challenges. This is the nature of democracy. Manya Brachear Pashman: I'm curious if this particular moment, even if it doesn't put Israel's democracy at risk, does it put Israel's economy or its safety? Jason Isaacson: There's a danger. We have seen reports that there are people who are withdrawing their investments in Israel, moving them to other countries. That there are Israeli companies that are moving certain operations or certain functions overseas. There are, of course, as we have seen, reports of reservists saying that they will not serve in the military, when they're called for reserve duty. All very concerning at a time when Israel's level of a threat to Israel from abroad is high. There have been attacks on Israel, not only from Gaza, which have been numerous and deadly, but also, of course, on the North. 100,000-plus missiles, maybe 150,000-plus missiles. Hezbollah every now and then someone takes a shot into Israel from there, from Syria as well. Iran continues to advance its nuclear program and its ballistic missile program, and every now and then shoot something in the sky over Israel as well. So it's not as though the threat level to Israel isn't something we should be concerned about. And therefore the security of Israel must be taken extremely seriously. If reservists are not serving. If air force pilots are not flying, Israel security is under threat. And if that is the result of changes in the governing structure of Israel, it should be a warning, a very sharp warning to the Israeli Government to go slow, as the recent American ambassador to Israel, Tom Nides famously told the Prime Minister and told us when we met him earlier this year as well, they should pump the brakes. Manya Brachear Pashman: You talked about the many threats facing Israel and for that reason, US foreign aid has been key to maintaining stability in the region. Does this development put that at risk? Jason Isaacson: I don't think so. Obviously, we watch that very closely. We're on the hill all the time. We speak frequently with members of Congress and their staff. You saw what happened the day before President Hertzog gave his address before a joint meeting of Congress, Senators and House members just last week, and that was a vote in the US House of Representatives on the essential nature of the relationship between the United States and Israel, reaffirming the strong alliance between the United States and Israel and that measure passed overwhelmingly, there were nine votes against that. One member abstained. But people talk all the time about elements of the Democratic Party, other opponents of foreign aid who speak out against aid to Israel or threaten to cut aid to Israel. You know, when push comes to shove and votes are taken, that's really not what happens at the end. I'm not saying that there isn't a concern about levels of support for Israel in the US Congress or in the broad public. Of course, that is an issue that AJC monitors closely and works very hard to make sure that there's a full appreciation of the value of the relationship, the mutually beneficial relationship between the United States and Israel. Our security is advanced when Israel security is advanced and vice versa, as president Herzog in fact, said in his speech to Congress last week. Manya Brachear Pashman: As I mentioned, hundreds of 1000s of Israelis have been on the streets protesting for 29 weeks now, even in the heat of the summer there, which is highly impressive. Some people credit those protests with slowing some of the reforms. Can you explain to our listeners what has been shelved? Jason Isaacson: It's an interesting question Manya because, in fact, as you know, the governing coalition in Israel includes elements that want to see really a complete overhaul of the judiciary and have a complete rebalancing of the relationship of the courts and in the legislature, and are not interested in shelving any aspect of the very ambitious proposal that was put forward at the beginning of this of the term of this of this government. The Prime Minister has indicated in various interviews in over the last several months, that he was not interested in advancing certain aspects, particularly the override clause, which would have empowered the legislature to counteract moves by the by the judiciary by the High Court to, to negate to cancel certain actions by the parliament or by the government. And the narrowness of that vote, that would allow a very slim majority in the legislature to overrule the court. There have been questions raised about whether other elements of his coalition feel the same way and whether they would prevail with the Prime Minister if push comes to shove. So we're waiting to see really how much is shelved, how much is just kind of shelved temporarily and will not move forward for a few months, but may come back. A lot remains to be seen. Manya Brachear Pashman: Could the High Court itself overturn this new law as unreasonable? Jason Isaacson: There's been some talk about that. And just earlier this week, colleagues and I did speak to some people in the democracy movement or the resistance, as they call it. And were given the impression that while attempts have been made, there wasn't the expectation that the court would do that. But it's possible to say that an attempt to change the reasonableness standard is unreasonable, and to therefore strike it down, and then and then who knows what happens, but I really do think that the best course of action is to bring the parties back together. Manya Brachear Pashman: So AJC has been very clear about its support of President Herzog's quest for compromise. The President's position though is largely ceremonial. Can he bring parties together that don't want to be brought together? Can he halt legislation that does not come out of compromise? Does he have any power to do that? Jason Isaacson: The legislation that passes the Knesset has to be signed by the President. But he has no power not to sign legislation that's passed by the Knesset. So in fact, there are laws that go into effect, even without the President's signature, it's an unusual system. He does have certain powers to obviously, as you know, after an election, to ask a party that believes that it can come up with a majority in the Knesset and form of government, he does have that power to empower a party to advance to form a government. But his other powers are quite limited does have the power of persuasion, he doesn't have the power of the bully pulpit, he does have the great moral authority of being the head of state of the state of Israel. He was received in the highest fashion in Washington, very important meeting in the Oval Office, an important meeting with the Vice President, of course, the address before the joint meeting of Congress. And he has played his hand, as limited as it may be on paper, he has played his hand really quite well to the point where he really is at the center of the discussions that have gone forward. Manya Brachear Pashman: Jason, why is the governing coalition so determined to restrict the high court's powers? Jason Isaacson: Whether this is a matter of protecting democracy, or protecting a nationalist agenda is a big debate that's going on right now in Israel. But whatever it is, you really cannot change the fundamental rules of how a government operates, the balance of power between the branches of government, without support from the public. And right now, the public has pretty clearly expressed great anxiety about the direction that this process is taking. It would be wiser for the long term survival and support of the current government, and of the state of Israel, if such changes are made only as a result of the national consensus. Manya Brachear Pashman: Israel is so diverse when it comes to religion and ethnicities and cultures. It's so complex, that an independent judiciary seems crucial for making sure everyone shares this land. Everyone is treated by the Golden Rule equally. You talked about the High Court protecting minority rights. Is that why this decision, this attempt at reforms seems so momentous? Jason Isaacson: Yes. And I would say there are other reasons as well. And another point that I think is important to make is that the independence of the Israeli judiciary, a judiciary that is independent from the political process, to a large degree, not completely, but to a large degree is armor for Israel legally, internationally. It is the ability of Israelis to say to those in the international community and the High Court of Justice and the internet. The Court of Justice excuse me and the International Criminal Court and the United Nations and other international bodies that say, Oh, we're going to say that Israelis are committing war crimes or we're going to hold some, some, some mock trial or some other international legal action against Israel. Israelis can say and we say in AJC, that's nonsense. You don't need to do that. Israel has an independent judiciary, if there are crimes that are being committed by Israeli soldiers or political figures, Israel will prosecute them, as they have done repeatedly, Israel will put prime ministers and presidents in jail. So don't tell us that Israelis' ability to judge themselves is somehow lacking. It's very important that Israel maintain an independent judiciary and the international recognition of the independence of the Israeli judiciary, which is another reason why this whole debate has been so frustrating to advocates for Israel like AJC, who know that the judiciary will remain independent, in most part, and democracy and Israel will continue to be strong, but just the appearance that the independence of the judiciary has been weakened, will be corrosive politically to Israel, internationally and legally to Israel internationally. And that's another reason why we have been so steadfast and trying to urge the Israelis to go slow, make this done in a way that has broad popular support and international recognition that the Judiciary's independence is being upheld and is sacrosanct. Manya Brachear Pashman: We're having this conversation on the eve of Tisha B'av, which is the saddest day on the Jewish calendar. It marks a number of tragic turning points for the Jewish people, but namely the destruction of the Second Temple, and the beginning of Jewish exile from Israel. My own rabbi reminded our congregation that the Jewish tradition teaches that division in the Jewish community is what ultimately led to the Temple's destruction. And here we are again. How likely is it that the coalition members will fast, reflect, and work to heal this rift in Israel? Jason Isaacson: That's an interesting question, and it was also interesting to see former US ambassador to Israel, David Friedman, make that same reference in a tweet the other day, and really call for a consensus, for a more deliberative process, than the unilateral approach that was being pursued. We're now about to enter a two and a half month period of summer recess basically for the Israeli Knesset. We'll see what happens when they come back in the fall. There's other legislation that will be coming down the pike as well, including a very ambitious proposal to entrench the exemption for the ultra orthodox community to conduct Torah study, rather than serve mandatory military service that other Israeli young people are required to, to attend. Whether that moves forward, whether that also sparks popular unrest, it remains to be seen. Israel is in a very interesting place right now. The democracy of Israel as we discussed is on full display. People are out there, they're motivated, they're active. And there are tensions within the society that are right on the surface in a way that does not exist in certainly any other country in the region. We're very proud of the fact that with free expression and a rambunctious free press, and people who have very strong feelings are not afraid, and have no inhibition whatsoever about stepping forward and trying to affect the policies of their government. There will also be other elections in Israel. And if the country veers too far in one direction or another, I have full confidence that the Israeli public with its strong commitment to liberal democracy will pull it back. Manya Brachear Pashman: Jason, thank you so much for your perspective, and for really helping us explain to our audience what this all means. Jason Isaacson: Thank you, Manya. It was my pleasure.