Monday, 24 July 2023 18:40

What Israel’s new judicial law reveals about its democracy

Israeli security forces use a water cannon to disperse demonstrators blocking the entrance of the Knesset, Israel’s parliament, in Jerusalem on July 24, 2023.

On Monday morning, the Israeli government passed a bill that might seem on the surface like a technical tweak to its court system. But there’s a reason the new law has been met with the largest protests in Israeli history: It is the tip of a deeper effort to transform Israel’s already flawed democracy into a kind of system that no longer deserves the name.

The new law eliminates courts’ power to overturn decisions by Israel’s Cabinet or its ministers that they find to be “extremely unreasonable,” a vague-sounding standard that has a more technical meaning in Israeli law. In the simplest terms, the reasonableness doctrine allows the courts to overturn policies when the government can’t prove that its decisions were made according to some basic standards of fair and just policymaking.

Such a standard for judicial review might seem overbroad in the United States. But it’s actually relatively common internationally, and Israel in particular has a need for it: The country lacks a formal constitution, significant separation of executive and legislative powers, and a federal system. The courts are basically the only check on decisions made by the elected government — and the current government, a far-right coalition led by Prime Minister Benjamin Netanyahu, is trying to weaken the judiciary’s powers and pack it with ideologically friendly jurists.

Eliminating reasonableness review of Cabinet decisions is “only part of a far bigger plan to gut checks on executive power in Israel,” writes Natan Sachs, director of the Brookings Institution’s Center for Middle East Policy. Other components of this plan are currently waiting in the wings, likely next steps for the government in the coming weeks and months. If they too are passed, Sachs writes, Netanyahu’s government would possess “the ability to do almost anything.”

Many Israelis, the hundreds of thousands involved in the protest movement, are terrified of what Netanyahu would do with such unlimited power. While the end of the reasonableness standard does not mark the end of Israeli democracy on its own, they fear it could mark the beginning of the end. Hence why so many are willing to go to extremes — like more than 1,000 air force reservists boycotting military service — to demonstrate their disapproval.

The passage of the new law, then, does not reflect the end of the fight over Israeli democracy. It is the end of one battle in a much bigger war: one where nearly everything about the country’s future is on the line.

The new law is a brick in the road to Israeli authoritarianism

Benjamin Netanyahu has been prime minister of Israel for 13 of the last 14 years. During that time, the foundations of Israeli democracy have gotten progressively weaker.

A key reason for this decline is the unresolved conflict with the Palestinians and the continued settlement of the occupied West Bank, which has undermined the Israeli center-left and empowered an increasingly aggressive right-wing nationalist movement.

Those settlements on and system of control over Palestinian land — collectively referred to as “the Occupation” — mean that Israel is in effect two governments in one: a democracy inside its internationally recognized borders, and a military-ethnic regime in the West Bank. The Israeli far-right, which has grown in power alongside the rising population of West Bank settlements, aims to end this house-divided situation by making Israel into a state for Jews and Jews alone.

The far right’s endgame is both annexing large chunks of the West Bank, effectively creating a formal apartheid system separating Israeli Jews and Palestinian Arabs, and also stripping Arab citizens of Israel (roughly 20 percent of the population) of key rights. Their ideas have already been turned into policy in ways that already weakened Israel’s democratic bona fides, including laws defining Arab citizens out of the country’s identity and muzzling groups critical of the government’s actions in the West Bank.

Netanyahu has turned his Likud party, historically the country’s leading center-right party, into a faction largely aligned with this far-right vision for the country’s future. He also has displayed an increasingly authoritarian personal streak: The prime minister is currently on trial for corruption charges, including allegations of trading regulatory favors for flattering press coverage. The new Likud is not only ideologically extreme but dedicated to protecting Netanyahu from the legal consequences of his (alleged) anti-democratic behavior.

In the current coalition government, which commands 64 out of 120 seats in the Knesset, Likud and its far-right allies are joined by ultra-Orthodox parties — religious factions that are less concerned with the Palestinians or Netanyahu’s personal ambitions than the balance between synagogue and state. They care about protecting ultra-Orthodox privileges, such as the right to skip military service to engage in religious study, and exercising power over religious law, like defining who qualifies as “Jewish” for the purposes of marriage and immigration in ways that exclude less strict visions of the faith.

These three power centers — Netanyahu, the far-right, and the ultra-Orthodox — align on the need to kneecap the courts to enact their agendas. It is the courts that could send Netanyahu to jail and that (on occasion) issues rulings constraining the settlement movement and protecting the rights of Arab citizens and more secular Jews.

The court system, in other words, is the barrier standing between Israel and a more authoritarian future. Without its oversight, “the government could ... rig future elections, for example by banning Arab parties from participating — a step previously proposed by coalition members,” the Israeli public intellectual Yuval Noah Harari writes in the Financial Times.

This is why the Netanyahu government’s first major act after winning the December 2022 elections was proposing a comprehensive judicial overhaul bill, one that goes far beyond eliminating the reasonableness standard for reviewing Cabinet decisions. Among other things, the bill would have empowered the Knesset (Israel’s legislature) to overturn court decisions with a simple majority vote and given the government near-total control over the process of appointing new judges.

The Netanyahu proposal resembled a common playbook from elected authoritarians, like Hungary’s Viktor Orbán, looking to weaken legal constraints on their power after an electoral victory — often a step toward ensuring that they never have to compete in a fair competition again.

Can Netanyahu’s assault on the judiciary be stopped?

Given widespread Israeli fear about the new government’s intentions, the initial judicial overhaul package provoked a massive backlash from secular and center-left Jewish Israelis — one that drew significant support from major power centers like the military and the high-tech industry.

The result was the largest protest movement in Israeli history, resistance so vigorous that it forced the government to put a pause on the entire effort in late March. But the protesters never believed that the fight was over and have continued demonstrating (roughly 29 straight weeks of protest). This past weekend, just before this narrower bill’s passage, saw some of the largest demonstrations since the previous peak in March.

The size of the protests reflects the nature of the reasonableness law: not a one-off, but part of a new strategy for enacting something similar to the original overhaul plan. Instead of introducing one major bill and passing it all at once, the government is trying to enact different components of the initial proposal sequentially.

Tactically, it’s not a bad approach. Reasonableness is not the only tool Israeli courts have to overturn government policies; its elimination marks an increase in government power, but it is hardly the end of judicial review. By passing this reform alone, rather than packaged with even more radical components of the initial overhaul, Netanyahu lowered the risk of defections from his four-vote majority. (The new law passed 64-0, after opposition lawmakers walked out of the vote in protest.)

But at the same time, the step-by-step means his opponents now have an opportunity to organize and escalate.

In part, this could mean a lawsuit challenging the new bill and blocking its implementation. Such a case, however, is risky: The government abolished reasonableness as part of an amendment to Israel’s Basic Laws, which together amount to essentially the country’s informal constitution. The Supreme Court has never overturned a Basic Law, and doing so could risk a constitutional crisis.

A better bet for the opposition is an escalation in civil resistance: not only continued mass protest, but also more reservists refusing to serve and economically devastating general strikes. We know, from the defeat of the full overhaul package in March, that such tactics can stop Netanyahu, at least temporarily. The question is how much pressure would be necessary to do so again, and whether the opposition has the power to marshal it.