As Israel marks its 75th anniversary, the atmosphere is filled with unrest and polarization. Earlier this year, protesters flooded the streets of Israel. The demonstrations continued for weeks, their numbers swelling to half a million in a nation of nine million people.
The images are striking: demonstrators amass in Tel Aviv and Jerusalem and outside the Knesset, the Israeli parliament. Among them are young and old, religious and non-religious, waving Israeli flags and crying slogans. They say they fight to preserve their democracy — the only democracy in the Middle East.
Israeli society is upturned in under three months. Businesses, banks, airports, universities, schools, and stores close their doors as the country’s largest labor union declares a general strike. Israel’s tech sector throws its weight on the side of the protesters. The President speaks out against the government and the Prime Minister in an unprecedented step away from customary
neutrality. Even the military — a key institution to the survival of the state of Israel — is shaken by internal turmoil.
All this is because of proposed reforms to the judiciary system. How did these reforms initiate what people are calling the largest protests in the nation’s history?
What is the proposed reform?
The reforms would strip powers from the judiciary, change how judges are appointed, and limit judicial review of the government by the High Court of Justice (acronym Bagatz). Currently, the Judicial Appointments Committee gives the Bagatz three delegates out of nine, effectively giving the court veto power as seven votes are required to approve a judge. Members of the Israel Bar Association, the Knesset and ministers also have delegates. Other lower courts also have powers
of self-appointment. The proposed reform wants to give the majority of votes to the ruling coalition together with the authority to dismiss judges.
These reforms would deprive the courts of the powers of judicial review by barring Bagatz rulings on Basic Laws, requiring a larger majority from all Bagatz judges to invalidate legislation, allowing the Knesset to overrule a decision with a simple majority, and reducing the power of the Attorney General. Furthermore, the reform would limit the grounds on which courts
may strike down government actions and their ability to rule on an issue or hear appeals against government decisions. (Jewish Journal, Columbia Law Review)
Why is the government pushing for these reforms?
Justice Minister Yariv Levin is behind the bill criticized for leveling a crucial democratic institution. He is a member of the newest government of Benjamin Netanyahu, who, after several inconclusive elections, formed a controversial coalition with far right and ultra-Orthodox parties. There is staunch support from the more radical wing of his coalition for these judicial reforms. (Jerusalem Post) While Netanyahu’s coalition may be restraining him politically, he is forthright in his advocacy for the reforms. In a recent interview, he downplayed the divide caused by the reform as transient: “People will see in the end that Israel was a democracy, is a democracy, and will be an even stronger democracy after this democratic reform.”
The impetus for the reform is a perception of imbalance between the powers of government branches that needs rectification. In the 1990s, the power of the court expanded through the work of Chief Justice Aharon Barak, who advocated for judicial intervention to strengthen Israeli democracy. The Supreme Court recognized the constitutional supremacy of the Basic Laws and enabled the Bagatz to strike down legislation conflicting with them. (Jewish Virtual Library) (The Knesset) Netanyahu believes the situation needs change: “You have to reform things that get ossified,” he said, “and in Israel what we’ve had is the ossification, the imbalance between the three branches of government that has to be corrected.”When the court expands its power without checks from other branches, it can exercise this power to the detriment of majority interests. The court can nullify the Knesset’s decisions, appointments, and military decisions. The Israeli judiciary enjoys a great degree of independence compared to other democracies. Typically, a judiciary invested with such authorities is balanced by having less power in appointments — or vice versa: a judiciary with less power will have greater independence in appointments.
Netanyahu promised he would “always defend the independence of the judiciary,” echoing claims made by Yariv Levin. They argue that granting the power of appointment to elected officials does not undermine judicial independence and that the reforms will not shift the balance of power too far towards the Knesset.
Supporters of the reforms have called the protesters anarchists or paid agitators. Netanyahu said they simply “don’t know the facts” about the proposed judicial reforms.
Some claim that Netanyahu is motivated by his ongoing corruption trial. According to Attorney General Gali Baharav-Miara, he violates a conflict-of-interest agreement that stated he would not be involved in judicial reform. Netanyahu’s political ally Areyh Deri, who was barred by the Supreme Court from serving the Prime Minister because of a criminal conviction, also stands to benefit. While Netanyahu might gain personally from these judicial reforms, the recent delay of the trial was not his doing. There are easier, targeted reforms he could have pursued to help himself that do not require overhauling the entire judiciary. Regardless, the controversy spilled into his trial and the public perception of it, prompting one of his lawyers to refuse to represent him unless he halted the reforms.
Nonetheless, Netanyahu and his political allies scorn the judiciary for what they see as an excessively intervening, activist court. His more militant allies dislike intervention against Jewish settlements in Palestinian territory, and the ultra-orthodox parties have their issues with the blocking of religiously motivated reforms. (Reuters)
Opposition to the reforms
The proposal of these reforms drove tens of thousands to the streets in protest, fueled in part by fears of the erosion of democratic institutions and the rule of law, but also by fears about the court losing its ability to uphold human rights within the Israeli legal system and military action.
An independent court system is fundamental to a stable democracy. The reforms would reduce the independence of the Israeli courts by expanding parliamentary power in appointing judges and empower the parliament to override court rulings. These are no small reforms; according to critics, they deeply disrupt the system of checks and balances in the Israeli government and
would turn the Israeli judiciary from one of the most powerful to one of the weakest. (Council on Foreign Relations)
Part of the national division is down to perceptions of the Israeli state and its relation to democracy. The Israel Democracy Institute published an index in 2021 that reported the following:
“[We found that] a higher proportion of respondents believed that there is currently not enough balance between Israel's democratic and Jewish components, and that the Jewish component is too strong (Jews -38% and Arabs -82%). The common perception among the ultra-Orthodox and religious is that the democratic component is too strong (67% and 45%), while among the secular almost two-thirds (63%) indicated that the Jewish component is too strong.”
The protests display a larger cleavage in the perception of what the state of Israel should be. The ultra-orthodox in the governing coalition are controversial. These parties believe that Israel should be primarily a religious state. Their opposition to the court’s intervention on military matters raises concerns over what the weakening of the Bagatz would mean for human rights and secular society.
Since the 1990s, the Bagatz has interpreted the Basic Laws to challenge Knesset legislation and government action. The fear is that the power to defend the rights of minorities, women, and LGTBQ citizens will vanish. The court has also made rulings promoting the equality of Arab communities before the law. (MEI)
The spread protest inside the military caused anxiety all the way to the highest levels of government. First, over a hundred Israeli Air Force reservists protested, prompting defense chief Yoav Gallant to speak out against the reforms and be subsequently dismissed (this decision has since been reversed). His firing drastically escalated protests and lead to a nationwide shutdown.Israel’s military is integral to state security; therefore, military protests exacerbated tensions.
Gallant was not the only one to speak out: IDF general Tal Russo also spoke in support of democracy but, like other military leaders, now calls for calm in the light of the security threats from Israeli-Palestinian violence.
I spoke with an Israeli friend who attended protests in Tel Aviv about these military and human rights concerns. He expressed reservations about what the reforms entail and the divisions they caused, as other Israelis have. He is currently undergoing training for his military service.
“Entering the army in this state of the country, a lot of soldiers are afraid to enlist because they are afraid of how this will affect human rights,” he told me. “I’m not in a position to resist, but it will make me consider the decisions I’ll have to make when it comes to human rights . . . I’m worried about what future orders might be.”
He told me that he dreaded the conflicts that might arise without the court’s ability to intervene in military action when it is necessary to protect human rights.
“I worry about the Palestinians” he said.
He also expressed concern about the polarization of the military and its infestation with political or religious interests.
“I know it can’t be separated, and I don’t think it has been separated,” he told me, “but these reforms would bring politics into the military on a new scale. ‘Is it a political or military matter?’ is not a question I want to hear.”
While there are instances in which the Bagatz curbed military action against Palestinians or struck down West Bank settlement laws, it has fallen short of protecting Palestinians, who make up around 20% of the population of Israel. Hardly any Palestinians have joined the protests because the same reforms that established the court as the vehicle for defending the Basic Laws also affirm Israel as a Jewish state and jeopardize Palestinian civil liberties. (See Israeli Basic Laws)
When it comes to settlements or military force, the courts rarely rule in favor of Palestinians. Not only does the court uphold government decisions violating Palestinian rights under the Basic Laws, but also violations of International and Humanitarian Law by authorizing expulsions, demolitions of homes, and discrimination in law enforcement practices.
As an institution of democracy, the court does not uphold the values of equality, freedom, and the protection of rights — but gutting the judiciary would not be a net gain considering how other citizens secure rights through the court. However, arguments for these reforms do not revolve around these humanitarian concerns and are more about balancing political power and non-secular interests. The reforms would erode judicial review in government decisions regarding the military. Those in the military or soon to serve are concerned about interference from far-right, anti-Arab figures in the government like Bazalel Smotrich or Itamar Ben-Gvir that push for militant security measures (Haaretz).
The head of the National Council of Jewish Women, Sheila Katz, said at a rally in Tel Aviv: “This is not about so-called judicial reform, it’s about democracy. In order for your sacred courts to protect the rights of all people, they must remain independent from politics.”
We have seen the conflict surrounding the judiciary’s role in a democracy. Netanyahu and Yariv Levin say they are remedying the balance of power between the branches of government. The powers currently amassed by the Israeli Supreme Court are particularly extensive. The court’s actions have been a thorn in the side of Netanyahu, his allies, and the aims of ultra-orthodox
Yet, those protesting feel that these reforms go too far. Moderate reforms on either the selection of judges or the powers of judicial review are unlikely to have resulted in such social turmoil. These reforms are too extreme and endanger the integral democratic institution of a strong, independent judiciary.
In light of the widespread opposition, Netanyahu delayed the reforms until next month. Protests endure relentlessly in what is now the 17 th week. Demonstrators continue to take to the streets in thousands across cities in Israel, with Israeli flags and pro-democracy posters. Opposition leaders, former politicians, and other public figures have joined the rallies, reports the Jerusalem Post. Hundreds of thousands more voice their discontent on social media. In two months, these protests have garnered international attention and the support of leaders in democracies, who will continue to watch to see what happens in the months ahead.
By Luke Ravetto
📷 – Hazem Bader/AFP