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Op-ed

Herzog must threaten to resign as the government begins to enact a judicial overhaul

The president warned that Israelis are facing a struggle ‘that could consume us all’; with the Netanyahu coalition determined to remake the country, he will have to take a stand

Shalom Yerushalmi

Shalom Yerushalmi is the political analyst for Zman Israel, The Times of Israel’s Hebrew current affairs website

President Isaac Herzog attends the Ashmoret conference in Tel Aviv, January 24, 2023. (Avshalom Sassoni/Flash90)
President Isaac Herzog attends the Ashmoret conference in Tel Aviv, January 24, 2023. (Avshalom Sassoni/Flash90)

Shortly after Justice Minister Yariv Levin first presented his radical plan to overhaul the judicial system early this month, and protesters began to mass outside Isaac Herzog’s official residence in Jerusalem, the president was asked if he intended to intervene in what is shaping up as a clear danger to Israel’s democratic underpinnings.

He demurred.

“I cannot take a stand,” the president said, invoking the general nonpartisanship of his largely ceremonial office. “My power lies in the work I do behind the scenes.”

On Tuesday, after three weeks of such behind-the-scenes work, during which he maintained his vague position, Herzog’s tone took a critical turn. Though he didn’t come out against Levin’s plan outright, he did argue that it was moving at too fast and dangerous a pace, and sparking justified anxiety about the future of this country.

“The democratic foundations of Israel, including the justice system, and human rights and freedoms, are sacred, and we must protect them and the values expressed in the Declaration of Independence,” Herzog said, addressing the Ashmoret education conference in Tel Aviv.

“The dramatic reform, when done quickly, without negotiation, rouses opposition and deep concerns among the public,” he said. “I see the sides prepared and ready all along the front for an all-out confrontation over the character of the State of Israel, and I fear we are on the brink of an internal struggle that could consume us all.”

The president’s statements likely reflect his impressions from closed-door meetings with Levin and other senior members of the coalition. There can be no compromise, they must have told him. Indeed, Prime Minister Benjamin Netanyahu and Levin are determined not to budge on the basic elements of their reform package: among others, hamstringing the High Court’s power to review laws and government decisions; granting the government total control over the selection of judges; and allowing ministers to appoint their own legal advisers, instead of getting counsel from Justice Ministry-appointed officials.

At the root of it is the fact that each of those elements would have an effect, whether direct or indirect, on the capacity to dismantle Netanyahu’s corruption trials, and on that the coalition will not compromise. In fact, far-right MK Simcha Rothman (Religious Zionism), who chairs the Knesset Constitution, Law and Justice Committee, intends to present an even more extreme version of the plan and push it through the legislative process in the span of two months.

Incoming Prime Minister Benjamin Netanyahu (right) with incoming Justice Minister Yariv Levin in the Knesset on December 13, 2022. (Yonatan Sindel/Flash90)

Herzog will soon discover that the overhaul is proceeding more intensely and at a faster pace even than he feared. Netanyahu’s far-right and ultra-Orthodox coalition partners are all pursuing it tenaciously, each for their own reasons.

The ultra-Orthodox detest the Supreme Court for what they see as its liberal rulings and due to the fact that it has for years been foiling – on the grounds that it would be discriminatory – their efforts to codify in law the sweeping exemptions from military service enjoyed by their constituents. They are also motivated by personal animus against the court’s justices over their disqualification last week of Shas party leader Aryeh Deri from serving as a cabinet minister due to his multiple convictions.

On the far-right flank of the government, meanwhile, lawmakers are intent on preventing the court from intervening in settlement activity and ordering evacuations of wildcat settlement outposts located on Palestinian-owned land in the West Bank, among other moves.

Herzog is the only person who can counteract what he too has come to recognize as a looming catastrophe. But in order to do so, the president, who has been urging dialogue that can only amount to nothing, must stop hiding behind soft-spoken intimations and take a principled stand.

In his speech Tuesday, he announced his vision for the 80th anniversary of the State of Israel in 2028, calling for the President’s Residence to serve as a “protected space for managing disputes and bridging rifts” amid the crisis. He also unveiled a project establishing an educational center for fostering coexistence, as well as a space for discreet discussions on core issues. This is all well and good, but ultimately irrelevant.

Likud leader Benjamin Netanyahu (L) and President Isaac Herzog at the President’s Residence in Jerusalem, November 13, 2022 (Kobi Gideon/GPO)

According to the veteran political commentator Hannan Crystal, “Herzog cannot get any concessions out of Netanyahu and Levin – maybe a few agorot’s worth. If he succeeds in extracting what amounts to a banknote, he’ll have earned the Israel Prize.”

Herzog’s anxiety and prudence are understandable. “A president cannot afford to appear foolish,” he once said, alluding to his predecessor Reuven Rivlin’s unsuccessful initiatives. Herzog doesn’t want to fail, and then – like Rivlin before him – become the target of unrelenting attacks from the right.

But ultimately, he will have no choice.

“This is an emergency,” Herzog said in his Tuesday speech as he beseeched political and judicial leaders to work out a compromise. But when the country is beset by an emergency, one must take action to save it. For Herzog – if he indeed thinks Israel’s democratic system of government is sliding toward dangerous authoritarianism – that means standing in the breach and threatening to resign if Netanyahu doesn’t back down.

The threat need not be made public at first. It can be conveyed in stern private conversations with the prime minister. It can also be preceded by a refusal to sign laws – a symbolic but significant step. And there are additional protest measures he could adopt before the judicial upheaval train gains unstoppable momentum.

There is precedent for such a move. In 1982, then-president Yitzhak Navon threatened to resign should the government fail to establish a national commission of inquiry into the Sabra and Shatila massacres committed by Israel’s allies in South Lebanon. In the end, prime minister Menahem Begin relented and appointed such a commission, with actual powers, that went on to oust then-defense minister Ariel Sharon.

Forty years have passed, and the challenge facing the current president is no less historic and perhaps even more critical than the one that prompted Navon’s effective – and well-respected in hindsight – threat.

This piece was originally published in Hebrew on The Times of Israel’s sister site Zman Israel.

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