As protests against the judicial overhaul again ramp up, JPPI’s president believes the national situation is not yet dire enough to be a ‘full constitutional moment.’
The Knesset’s Constitution Committee restarted deliberations over pieces of judicial overhaul legislation after compromise talks at the President’s Residence broke down.
Seventy-five years after its foundation, Israel’s rules of procedural governance are still unclear, and clearly hot-button issues as the country heads into a 26th week of judicial overhaul protests.
But from the first announcement of the judicial overhaul in January, our guest this week, Prof. Yedidia Stern, got to work: In cooperation with other former heads of law schools and under the aegis of President Isaac Herzog, they came up with a first compromise solution — which was turned down.
Today, he’s bringing to the podcast a partial solution, what is called a “thin constitution”. Stern, who is now the head of the Jewish People Policy Institute, talks about the procedural constitution as well as earlier attempts in Israeli history to write a constitution and why they didn’t work out.
Several months ago Stern brought the first potential judicial overhaul solutions to Justice Minister Yariv Levin, he didn’t receive the welcome he’d been expecting.
“I formed a group of 10 law professors, trying to figure out a professional solution to this situation and we met with Simcha Rothman, and we met also with [Justice Minister] Yariv Levin. So when Yariv Levin, first meeting, entered the room, he gave us a big smile… he looked at me, pointed with his finger and told me, ‘The whole thing is because of you, Prof. Stern.’”
Find out how Levin’s former teacher was an impetus for his judicial overhaul work today as we ask Prof. Yedidia Stern, what matters now?
Yedidia, thank you so much for joining me today in Jerusalem’s Nomi Studios.
“Thank you for having me.”
Such a pleasure. This week we have seen the restart of the judicial overhaul processes in the Knesset. We have seen many people taking to the streets in protest to the restart of the judicial overhaul. And I just asked you in this week of restarting, what matters now?
“Well, I think that right now we are watching a very scary, dangerous point in our national life because it might be the beginning of a second round [of intense civil protests]. We heard Ehud Barak and other people calling for civil disobedience, which I’m totally against, but these kinds of people saying these kinds of things — obviously, it’s a dangerous moment. I really hope that the government, the coalition, will find a way to go back to talks in the President’s Residence because I see it as the only way of handling the situation in a careful way. And we deserve it as people that our leaders will talk to each other and will not push each other to the brink of some kind of civil war.”
The talks at the President’s Residence: I always wondered, were they serious in any way? The political talks I’m talking about, because so many left the table, so many sent their B-teams to the table. Were these serious talks?
“Amanda, we’re talking about three levels of talks. There is a professional discussion when you talk about the options for solving the issues one by one. These kinds of talks, I think, were serious, and the ideas on the table were convincing and I think feasible. But this is only the less important level of discussion.
The second level is the political one. Each one of the parties is thinking about their constituency, about the future election, about the polls, and they’re not willing to risk their status in order to reach some kind of sensible agreement, professional agreement.
“But the third level, which is the most important one, is the emotional one. The level of trust between the people around the table is very, very low. Based on history. We know the history. So if you ask me if this is serious, it might be serious, eventually. It depends on the will of one person — Bibi [Benjamin] Netanyahu. If the prime minister will decide that he wants to reach some kind of sensible agreement, I believe the agreement is reachable, but I’m not sure if he made this decision. He’s obviously in a not-easy position because, in his coalition, major parts of his coalition are against any kind of sensible settlement of the issue.”
Today, it seems there are many factors going into the idea that our prime minister would actually want to step in and solve the issue in some kind of way, because, as you said, he has his coalition. Each part of it is pushing for a different part of the judicial overhaul. It’s not as if all of them have any kind of consensus as well. And then he has his personal cases — this week we heard, too, the explosive testimony from Arnon Milchan in Case 1000 and Case 2000. So do you think that our prime minister has any desire to solve this?
“Well, I think it’s his interest. I don’t know about his desires. I think it’s his interest because I think that if the situation goes on, we may be facing, not only demonstrations but major damage to the Israeli economy. And he cares about it, and this is his legacy, he understands it. The fact that after half a year, he still hasn’t stepped into the White House, and he is not welcome in many places in the world. And that was his claim to fame, that he was able to be the Israeli face for the world. So these two aspects, the economy and his status in the world, are going to be hurt dramatically. And I think that’s his interest to do it.
“I’m not a political analyst, I’m a judicial person. But if I’ll try to be a political analyst, I would say that Netanyahu’s interest is to go on with the process and not to reach any kind of agreement. “Process” might be his purpose because it defers decision and every decision, from his point of view, is not good. So if I have to anticipate, I think eventually we’ll go back to the Beit HaNasi [President’s Residence] for another round of talks and maybe something will come out of it, but it will be minor.
“And you have to realize that even if we’ll solve, right now, the dispute, the issues are still up in the air. We have a conflict here. It’s an identity conflict. The manifestation of the conflict is what we’re seeing, the judicial reform and all the rest of it. But we need a healing process that is supposed to be done by us as a people, not only by a prime minister. And all solid, patriotic Israelis should come together and think about the future. We are in the midst of a culture war. It is not solvable because we have different visions about the future of Israel. But what we can do, and we should do is find a way of handling these disputes in a fair way so that the winner is not taking all, but the winner takes care of the minority. Today I’m a minority, tomorrow you will be a minority. It’s up to us to make sure that minorities will not be pushed aside.”
And in Israel, as we’ve seen throughout history, the body, that protects the minority is usually the Supreme Court. Would you agree with that?
“Yeah. In today’s Israel, the Knesset and the government, are basically one branch of government in Israel, the way it is in reality. They are more sensitive to the particular aspect of our national life, the Jewish aspect, either the religious one or the national one. While the Supreme Court of the State of Israel, in the last two generations, is perceived to be the one who cares a lot about human rights, minority rights, liberal aspects of our national life. And when Yariv Levin, our justice minister, wants to move power and authority from the judiciary to the political benches, he’s actually trying to change the face of Israel to be more particularistic. And his allies are the religious and the ultra-Orthodox because they care about it a lot.
But we have to realize, and they have to realize that tomorrow they might be the minority. And if the Supreme Court will not be there to protect them as a minority, who will protect them against the majority’s rule, which might happen a year from now?”
So essentially they’re trying to change the rules of the game. But actually, the rules of the game haven’t really been written down. So let’s talk about your idea of a thin constitution. First, let’s talk about what’s a fat constitution as opposed to a thin.
“A normal constitution includes three parts. One part is the principle of the state, the identity of the state, the major declarations about who we are and what we are committed to as a state.”
So for us, would you agree that’s the Declaration of Independence?
“It might be, but more than that. It’s also stating that we’re a Jewish and democratic state, saying that Israel is a nation-state of the Jewish people, guaranteeing the status of religious sensitivities in the state, talking about the capital, the language, et cetera, these kinds of things, who we are.”
So we don’t have that yet.
“We don’t have that yet. You’re right. The second part out of three, of a regular normal constitution, includes a full Bill of Human Rights, which includes equality, freedom of speech, etc. We know all of what we would like to have to guarantee our status in the state.
So this full Bill of Rights we do not have. We have bits and pieces, but we don’t have a full Bill of Rights. And Israel is the only one, along with England and New Zealand, out of all liberal states that do not have a Bill of Rights. Which is frightening in a way, and strange in a way, because Jewish tradition is behind the idea of human rights.”
Maybe depending upon how you decipher Jewish tradition.
“Well, René Cassin. His Hebrew name was Shmuel Katzin — he got a Nobel Prize for Peace for drafting and pushing ahead the Universal Declaration of Human Rights by the UN in 1947/48. And he was testifying — and I really feel the same way — that he was doing whatever he was doing not as a universal person for the UN, but as a Jewish person, echoing his understanding of tradition. And I think it’s very clear when you read. I mean, we read in the parshat shavua, in the Torah portion of the week, just two weeks ago, “One law you’ll have to everybody, to the citizen and to the convert.” And convert is not convert but it is the “other.”
“So it’s very natural to have a Bill of Rights and we don’t have it in Israel, after 75 years. So that’s the second part of a full constitution. The third one is what I call a thin constitution and it includes the rules of the game. We have a debate. The debate is not going away anywhere. How do we handle the debate in a fair way? Guaranteeing the rights of everybody in a sensitive and normal way?
“We’re talking about three branches of government. Who appoints who, who controls who, and what is the relationship? These kinds of things are basic needs for our survival right now. This is amazing, Amanda. Right now, in the last 10 years, Israel changed its Basic Laws, amended them more times than Americans amended the American Constitution from the time of its inception, from the beginning. So obviously we are standing on shifting sands as a nation. And if tomorrow you have the chance to form the coalition, and you’re a good person, nevertheless, I guarantee you that you will change the rules of the game to fit your interests, political interest, not because you are bad, but because it’s an option and you can use it. And as a fact, all prime ministers in the last decade, that’s what they did. Once they got the coalition together, they changed everything to fit their purposes.
“So the winner may take it all, and even more so: Right now, once you form some kind of arrangement into a Basic Law form and you can do it by simple majority, you are secure from any judicial review by the Supreme Court. So the temptation is very clear. Why not use the thing if you can do it easily, and you are secured once you do it?
“So right now we have this judicial reform or whatever you want to call it. This judicial reform is trying to change some parts of the rules of the game — by the way, not a major part of it, it’s just the beginning. I want to remind you and our listeners that when Yariv Levin came out on the 4th of January with his reform, he was saying “I have four stages,” — this is only the first one. He never told us what the rest of it is. So we were taken, not to say kidnapped, into a journey without knowing what the next step is, and eventually what the final destination of this trip will be. This is unbelievable. And the whole thing is going to take the form of Basic Law, and the courts cannot help, apparently according to Yariv Levin. So this is very dangerous.
“So what needs to be done is a thin constitution, meaning we have to agree to put into our Basic Laws the relationship between the branches of government and to secure it by the need for a supermajority in order to change it, amend it in the future.
This will not make any kind of decision of values, of who we are. Do we have equality or not? It’s a different question. The question here on the table is how to handle the dispute.”
So you’re talking about codifying procedural governance, essentially.
“Yes. You may call it instead of a thin constitution, a procedural constitution, it’s the same thing, but don’t mistake it to be negligible. These are the basic terms for survival in a place like Israel, which is loaded with different ideas about who we are and where we want to go to.”
And so in this thin constitution, would you include the major sticking point between pretty much everyone, which is the judicial selection committee?
“Of course, yes. Listen, Yariv Levin went into a toy store on the 4th of January, once he was given the authority, and picked from the shelves four things. He could have picked other things as well, some of them less important than what he did pick, and some of them much more important. He decided to pick these things and now we all talk about these things.
“But you have to understand that reality is much more complex, in a way more rich, and future governments, and maybe even this government, will decide to take from the shelf another big deal, and make it a Basic Law and secure it. This is too dangerous to stay in this situation. So yes, whatever he picked, Yariv Levin is part of what I’m talking about. But it is only a portion, actually a tiny one.”
People say often that they were surprised in January to hear about this judicial overhaul. But it’s not as if Yariv Levin or MK Simcha Rothman made any kind of secret of their plans. During the campaign, of course, the party platform for Simcha Rothman included most of what’s happening now. I do wonder why everyone is so shocked and dismayed. Did they think that they were just dreamers?
“Well, there’s a difference between somebody writing a book. Simcha Rothman, when he’s not a Knesset member, and even when he’s a Knesset member of a tiny party. There’s a difference between this situation and when he is given the authority as the head of a committee in the Knesset to actually do it.
“I mean, the major shock, I believe, is because for the first time ever in the last 75 years, we have a coalition that is fully right-wingers, only right-wingers — never happened before. Netanyahu, I think, purposely took care in his previous governments to have with him in the coalition somebody, some party who is not right-wing all the way. [Moshe] Kahlon, for example, and others as well. So for the first time, 64 Knesset members are apparently one bloc, right-wingers and they are able to do whatever they want.
“Now, the fact that somebody talked about it in the past doesn’t mean that in the public eye, it became a reality. Also, I want to remind you that when Netanyahu ran for the election, last election, he didn’t mention it as a big deal. He was talking about peace with Saudi Arabia. He was talking about the economy, he was talking about other things, not about this as a major flag. But for the last half a year, this is the only thing we talk about. This is the only thing on his agenda, on our agenda. It’s unbelievable that as a state, we gave up on so many important interests, and we focus on one thing, because of an agenda of, if I may say so, two or three people, and it’s not a national agenda.”
I want to bring you back to 2003, which was another era in which a constitution was at least being talked about, if not very seriously, being talked about for about three years. And spoiler alert, we still don’t have a constitution. So bring us back to 2003. What happened then?
“Yeah, I was lucky to be part of it and to try to help to make a constitution then. We were a group headed by Chief Justice Meir Shamgar and we were trying to put on the table, on the national table, a draft of a full constitution with everything — all three parts I mentioned before. And it took a while, and eventually, we were able to draft something like this by consensus. But, this was done at a time when we did not have a constitutional moment. What do I mean by that?
“Regular politics. Each one of the leaders of a party thinks about his or her constituency. “I have to be reelected soon.” In Israel, it’s always soon. You never know. So if I give up to your compromise, I’m betraying my voters. I cannot afford to do that. And you’d think the same way. So in regular daily politics, it’s really, really tough to reach a real compromise on major issues. And a constitution is, by definition, a compromise on major issues. Okay, region and state, can we make a compromise now about the whole thing? Do you see the partners to do that? Each one of the parties obviously will say: “Well, I’m a leftist and I’m going to betray my voters. They will vote for somebody else.”
“So when you have regular politics going on, compromise on these kinds of things is not feasible. As opposed to regular politics, a constitutional moment is a moment when people understand, everybody or many people understand, “Well if we don’t come to terms with a compromise, the damage might be too great, too big. We do not want this. That’s why we agree to come into some kind of compromise.” In 2003, it wasn’t a constitutional moment, it was just another year.
It was ahead of the Disengagement, of course, which took place during this three-year period.
“Not enough. And unfortunately, what I’m telling you now, this is more important. I think that right now, as it is right now, this is not a full constitutional moment. That’s why I think we have to ask for, not only, but only, for a thin constitution, or not the full one. Because right now I don’t see the people and the leaders agreeing for a national compromise on big issues.
Let’s talk about what the big issues are. It seems as though what explodes a lot of these constitutional talks, back in the 1950s, 2003, etc., now, are the religion and state issues. Am I wrong?
“It’s one of the major issues, obviously. Let’s take as a test case the issue of equality. Go out on the street and ask people, “Are you for equality?” Almost everybody will say, “Obviously, who is against equality?” Ask rabbis, ask people who live in the settlements, ask Israeli Arabs, ask poor, and rich people. Everybody will say as a slogan, “Yes, we would like to have Israel be a place where equality is a basic value for our state.” However, try to translate this commitment to equality into specific issues and you will see that I think the majority of Israelis will not agree. Why? So one example is religion and state. The status quo right now does not give us the comfort of equal treatment of all Israelis.”
Or even Jewish Israelis, for that matter.
“Or women, to be more exact.”
“51% of the population is not treated equally, unfortunately, by Jewish law on marriage and divorce law, especially divorce. But this is the law of the land because halacha is interpreted this way. Now, do you think that Israelis agree now for civil marriage and divorce law, instead of halachic law, Jewish law, in Israel? Do you think you have a majority within the Jewish population? Maybe. Do you think the religious will agree to it?”
“Do you think the ultra-Orthodox will agree to this?”
Even worse than never.
“So do you think it’s feasible, in reality, not as a declaration? And again, we’re talking about consensus. In order for a constitution to give you what you want for the future, you need a consensus accepting it in the generation that forms the constitution. Otherwise, why? A simple majority today will bind another majority in the future. So in order for the constitution to help you, it must be based on wide consensus. I would say two-thirds, 80 Knesset members. So obviously, on this issue, as an example, you will not find 80 Knesset members.”
What you’re describing, it sounds like to me is that so we should put it to the side and wait for a better moment. But if you take the Israeli demography, that better moment is never going to come for equality for women.
“Well, first of all, I’m not saying what’s right or wrong, I’m saying what’s feasible. Okay, I may join, let’s say you, Amanda, in trying to change the law on these issues. But this is not the issue, what you and I are thinking, the issue is what can be done. And apparently, it cannot be done now. I think it’s pretty clear. So now you and other people are looking into the numbers of demography and say, well, it’s going to be even worse. So I have two answers to this — not answers, but two ways of looking at it.
“Number one, if you are a true liberal, accept reality. And reality is the number of people who are citizens of the state of Israel. And you have, I hear, many kids, and I have many kids, we have our share in demography. Each one of us should do whatever they feel they should do, but we cannot deny the majority of the future, their ways of life. That’s a liberal answer to the challenge.
“But I want to be even more cathartic for you: I think demography analysis is something that is very speculative. The reality is that all anticipation about the future demography of Israel, was proven to be mistaken in the past.
“You know, Ben Gurion was around in 1948-49. The National Statistician, his name was Prof. Roberto Bachi, he told Ben Gurion that Israel will eventually have no more than a million Jews. And he was an official, that’s his profession, a professor at Hebrew University.
“I’m old enough to remember, when people were talking about the demographic threat from the Israeli Arabs, not Palestinians, the Israeli Arab sector because at the time they used to have almost seven kids per family. Not anymore — right now the average size of an Arab Israeli family is similar to the average size of all Israelis. So the demography over there is going to apparently stay the same way it is right now, 20-21%.
“You are referring to the ultra-Orthodox. I can tell you that my anticipation is that this is going to change dramatically in our lifetime, in the next two decades. First of all, you see the beginning of the change right now, it’s going down. The age of marriage for ultra-Orthodox couples is going up and up. The fact is that the more people going to work, and we know that ultra-Orthodox women are going to work, we’re talking about almost 80%. People who go to work, they tend to have less kids. So I don’t know what will happen in the future, but I wouldn’t make it a major thing. And anyhow, what can you do? This is reality.
All of that is really fascinating, and I appreciate that. Since you’re kind of in your JPPI [Jewish People Policy Institute] hat, I just want to ask you, what are you hearing about how religion and state is affecting our relationship with the Diaspora right now?
“Obviously, the situation is very tough, vis-à-vis the Diaspora today. They do understand, the leaders of Jews outside of Israel, that if the Supreme Court of the State of Israel will become weaker, the status or the recognition, of their beliefs in Israel — Reform movement, Conservative movement, et cetera, is going to be hurt. It’s going to change, because as of now, the major advantages for the status of non-Orthodox Judaism in Israel are based not on decisions by the Knesset but by decisions by the Supreme Court. And they should be scared of what might happen, and they are scared.”
When you were talking earlier about how our prime minister may want to just see the process continue, I couldn’t help but think of the Western Wall compromise deal which was made, ratified and frozen. And that really burned a lot of bridges with the Diaspora. Do you think that they’ve been built back since?
“Well, we are losing part of the Diaspora in the sense that the differences between their belief system, the fact that they are liberals, the fact that they do not like [former US president Donald] Trump, on one hand, and Israeli society is much more conservative. The leadership here is favoring Trump or the Republican Party. And we know, past experiences of even people saying it explicitly, like Ron Dermer was saying, and others. These facts are widening the gap between Jews in Israel and Jews outside of Israel. It is a tragic moment for us if we allow it to happen even more so.
“We know that the young generation of Jews on American campuses have to make a big, big choice between being Zionist and being “acceptable” on the campuses. Tough situation for them. When I went to Harvard 30 years ago, being Zionistic and I wore my kippah over there, it was a source of pride. Nowadays, at Harvard and elsewhere, it’s just the opposite. You have to hide who you are. And obviously, when you are 18 and 19, let’s say you’re raised in a Jewish day school or in a Jewish environment and you go to an Ivy League university or any other university, and for the first time to your face, you hear that what you were taught is the right cause of the State of Israel for survival, and you hear what they say about us. This is really tough.
“So not everything is up to our government and not everything is in our hands. And we’re talking about a wider picture. But we have to be aware of the fact that right now the relationship between Jews and the Diaspora, especially the young generation and the States of Israel, is in a crisis.”
I want to pivot us back to the judicial overhaul. Before I came here, I asked my husband, who studied law at Hebrew University, he’s no longer in that field, if he had heard of you. And he said, “Yedidia Stern was one of the best lecturers I had during my studies.” So that means, however, that you were also the professor for Yariv Levin, who is in my husband’s class, journalist Dana Weiss, and other people. And so, you actually know the players, not just as a colleague, but you know them from a different relationship. And do you see that these former students of yours will actually bring us away from the brink once some kind of talks are renewed?
“Well, you never know. I can tell you a funny story. I formed a group of 10 law professors trying to figure out a professional solution for the situation. And we met with Simcha Rothman, and we also met with Yariv Levin. So when Yariv Levin, in the first meeting, entered the room, he gave us a big smile, which is not apparently the usual case. He looked at me, pointed with his finger, and told me, “This whole thing is because of you, Professor Stern.” So I said, “What do you mean?” So he said, “Well, I took your corporate law class and it was clear to me that commercial law is not for me. So I had a different career choice.
“But to answer your question, obviously, you never know what will happen. You have so many students in a class, you don’t know them personally. I didn’t know the guy personally. I also had in my class, Yigal Amir, in Bar Ilan University, so you never know.
“But I want to give some optimistic kind of thing, I don’t think it’s only bad. First of all, right now, Israelis, not only lawyers, people who are not lawyers, are not married to lawyers, are very much aware of the importance of law, of the importance of securing the status of the Supreme Court, of the importance of a Bill of Human Rights.
“I mean, the vast majority of people who are in the center in Israel, were not involved in a daily understanding that we need to protect our democracy. This is a new phenomenon. Each one of us went to work, had a career, had a family. We acted as individuals, which is normal for a liberal country that is very prosperous, like Israel.
“The last half a year changed the whole thing. The awareness will stay with us — this is a big, big asset. Even more so, I think that we Israelis, we are known to have heroism in the battlefield. What about heroism in the streets? Civil heroism? Nobody anticipated that we would be so brave. We as a nation, not necessarily the left, the center, also the right-wingers. We all came out to the streets, many, many of us on a regular basis. And there’s no violence. It’s unbelievable.
“From a historic perspective, I think people will look at us and say, wow, what a phenomenon, what a success. I’m not talking about what will happen eventually with the arrangement. I’m talking about social phenomena. This is an amazing occurrence, an amazing happening. And I want to add something which people usually do not like to hear. The police are functioning amazingly well, under the boot of somebody [National Security Minister Itamar Ben Gvir]. Nevertheless, we’re handling the situation without major violence.
“Try to find another democracy, liberal democracy, obviously not dictatorship, but another liberal democracy that was able to do that. I think in America, if you’ll have the same kind of proportion of people coming to the streets, America will go into civil war. It’s not happening not because of a miracle. It’s not happening because we have a basic solidarity between us, despite the different vision and despite our leaders, and despite the way we talk, and despite social media, et cetera, et cetera.
“Nevertheless, looking at my people, I feel that we still feel part of the same fabric. And this is an asset we have to keep and maintain and make sure it stays with us.”
I worry about what may happen when all of those who have taken to the streets, 100,000 almost every week for the past almost 26 weeks, all of those who have adopted democracy as their religion right now, those who are regularly practicing their religion by waving flags every single week. I personally worry when, if, when, in the end they don’t get what they want. And for some, it’s a very totalitarian view. It is to knock out the government, of course. But what will happen when, if, all of these people, hundreds of thousands of people at certain points throughout the entire nation, what will happen if they do not stop the judicial overhaul?
“Well, number one, I don’t think it will happen. A major book written in the Kennedy School of Government at Harvard by two professors, an empirical study of the success or failure of civil demonstrations in democracies worldwide, I think 160 cases were checked. If 3.5% of the population is coming out of the street in a nonviolent way, in a persistent way, there’s not even one case where the majority was able to have it their way. The demonstrators were successful. If they are nonviolent and the amount is 3.5%, they call it the rule of 3.5%. In Israel, we have 3.5% and even more, that’s number one.
“Number two, it is obvious that eventually, some kind of agreement will come up, and we see already that Netanyahu said this week that he’s not going to go forward with the judicial reform for the next level besides the reasonableness [clause]. So we know already that it’s not going to happen.
“But if it happens, I think Israel will face chaos. And since Netanyahu will eventually understand that this will be his legacy — that’s what his grandchildren will study in civic class in 30 years — I don’t think it will go this way, and I think we can see it already. Yes, I’m optimistic.”
Yedidia, thank you so much for joining me.
“It was a pleasure. Thank you very much, Amanda.”
First published by ‘The Times of Israel’.