The reasonable thing to do

MARY REICHARD, HOST: Coming up next on The World and Everything in It: Changing the rules for Israel’s judiciary.

SOUND: [Israeli voices in courtroom]

MYRNA BROWN, HOST: Last month, Israel’s Supreme Court held the first hearings in a case that challenges measures passed by Israel’s legislature, the Knesset.

Protestors and some of Israel’s leaders say the court needs to resist the prime minister’s attempts to undercut democracy, but Benjamin Netanyahu says his goal is to bring an activist court back to the middle. Sound here from Global News.

NETANYAHU: Imagine that in the United States, the Supreme Court could tell the president, “Ok, we are nullifying any one of your decisions just based on something that we think is unreasonable.” You would not accept it. We don't accept it, but we have to correct it. And that's what we just did. It's a minor correction.

REICHARD: Is it really minor? Joining us now to talk about it is WORLD’s Global Desk Chief and reporter in Europe, Jenny Lind Schmitt.

Good morning, Jenny!

JENNY LIND SCHMITT, REPORTER: Good morning.

REICHARD: Jenny, what arguments are being brought against the government?

SCHMITT: Well, several citizens groups have brought petitions against the current government concerning a change to the country's reasonableness law. And I'll kind of give us some background. As soon as Netanyahu came into power, his government proposed some really big changes to the judiciary system. And the main change, and this is the one that the is being challenged is this, that up until now, the Israeli Supreme Court had the power to determine which laws met what it called this reasonableness standard. The court could strike down laws that it found unreasonable and often in the past, those have had to do with laws permitting Israeli settlements in the West Bank, and other issues like that. The change that the Knesset has passed takes away power from the Supreme Court to determine this reasonableness standard.

REICHARD: Well, here in the U.S., we have the principle and precedent of judicial review, the Supreme Court here can assess and rule unconstitutional those laws that violate the US Constitution. But that is not the case. In Israel, Jenny, how is its system different?

SCHMITT: So since the founding of Israel in 1948, Israel has not had a written constitution. The Declaration of Independence calls for one but it was put off over the years, first by the the first president David Ben Gurion as his concession to get different parties to cooperate together to form the country. So instead over the years, the Knesset has passed a series of laws that are called the basic laws, and those are they function as a quasi constitution. Many Israelis say now that the fact that there isn't a written constitution in place has really exacerbated some of the problems that they're working through right now. And I think it's also kind of essential to remember that the Israel has a parliament, and it has a judiciary, it has one house of parliament of whom the Prime Minister is the head of the leading party. So there's just one body and the Supreme Court, the Supreme Court is the only check on the power of the government.

REICHARD: I want to try to bring this down from the meta and the existential feel of this question, Jenny, what happens if the court uses its reasonableness standard to overrule the Knesset law curtailing the reasonableness standard?

SCHMITT: Well, yeah, it may seem existential and theoretic. But that's exactly where the rubber meets the road in this case. That's what many people following the issue are calling a constitutional crisis, even though as we were just talking about there is no actual written constitution. The big question is the military and the security forces. If the court overrules the law curtailing its own power, then who is the ultimate authority? And which one will the Israel Defense Forces obey? Military service is a hugely defining and unifying factor in Israeli life, people from all walks of life served together and they are reservists together, and they're really proud of their service. But this past year over this issue, 1000s of reservists have said that they won't show up if this law remains in force. So who are those service members? Who will they obey if the Supreme Court or the Knesset?

REICHARD: And this isn't the only challenge to the Netanyahu government that the Court is hearing right now, as I understand it, last week, Israel's High Court began hearings in a case challenging a law that makes it harder to remove the prime minister from power. So what's going on there?

SCHMITT: Right, so that law was passed earlier this year in the spring, and it better defines how, under what circumstances a prime minister can be removed from power. It's actually a situation that the Supreme Court justices when they were doing these hearings last week, they said that this is an area that needs some definition. It's been very vague. And so most of the justice, they're in agreement that something should happen there that it should be really clearly defined how a prime minister could be declared unfit for office. However, this law was passed. It's pretty clear to protect Netanyahu and so the Supreme Court justices said that they are going to rule not so much on the content of the law, but to determine when it would be put in force and they're saying they have the possibility to delay it becoming law until the next Knesset, which would then take away that self serving protection for Netanyahu.

REICHARD: Jenny, I'm wondering what makes this story significant to people living outside of Israel?

SCHMITT: I think it's really important to underline the fact that Israel was founded 75 years ago this year, but it was founded as a secular nation. It's Jewish, yes, and founded by Jews who wanted to find a land where they could be safe after the ravages of World War II, and the Holocaust, the idea was to create a homeland. But the founders, David Ben Gurion, who I mentioned earlier, and other political leaders, they were primarily secular Jews. The nature of the country over the years as people have emigrated, as society has changed, has shifted somewhat. And so there is a big contingent of more practicing Orthodox Jews. And there is a real desire there to change the nature of the state so that it is more religious and that the laws uphold Jewish law. So secular Israelis are saying that this government, because of the coalition partners really want to change the nature of the nation of Israel to a more religious society. And they're raising the questions. Well, what about those of us who aren't particularly religious? What about Arabs, who are Israeli citizens who will protect their rights? And so there's all these kinds of questions that are being asked and raised and that it may seem like Netanyahu has really tried to, to frame this as Oh, this is just a conflict about the Supreme Court power just like you have the United States. But the his critics are saying no, no, no. This is really a debate about what will the nation of Israel look like going forward?

REICHARD: Jenny Lind Schmitt is WORLD’s Global Desk Chief and a reporter in Europe. Thanks for joining us!

SCHMITT: Thank you, Mary.

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