Hundreds of thousands of protesters have taken to the streets in the last few weeks to rally against the Israeli government’s plans for so-called judicial reform.

In Jerusalem on February 20, 2023, Israelis protest outside Israel’s parliament against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system. (Ohad Zwigenberg / AP Photo)

Meron Rapoport and Oren Ziv, The Nation, FEBRUARY 24, 2023

EDITOR’S NOTE: This article was produced in collaboration with +972 Magazine and Local Call, two media outlets run by Palestinian and Israeli journalists.

It is almost inconceivable for Palestinians to describe Israel as a “democracy.” That is also the case for many Israeli human rights activists. Seventy-five years of ethnic cleansing, military rule, Jewish-only settlements on Palestinian-owned land, an established system of discrimination that amounts to apartheid have all rendered, in their eyes, the terms “Israel” and “democracy” incompatible. The latest Israeli raid in Nablus, in which 11 Palestinians were killed by Israeli soldiers is just another flagrant example.

Yet, in the last few weeks, Israeli society has been torn apart by the question of democracy. Hundreds of thousands of protesters, the vast majority of them Jews, have filled the streets of Tel Aviv, Jerusalem, Haifa, Be’er Sheva, and other cities and towns in “defense of democracy,” calling for mass civil disobedience and even “rebellion” should the new far-right government implement its plans for so-called judicial reform. The term “civil war” (or in the Hebrew version, “a war of brothers”) has become a mainstay in the collective political vocabulary, alongside explicit warnings of potential bloodshed in the clash between the government and Jewish citizens.

The historic protests are growing not only in size but also in influence, as large sections of the Israeli elites—entrepreneurs, bankers, lawyers, intellectuals, security personnel, diplomats, former Supreme Court justices, and state prosecutors—have joined. Most remarkable among the protesters is Israel’s high-tech and cyber industries, responsible not only for some 20 percent of state revenues from taxes and 40 percent of its exports, but also for Israel’s internal and external image as a “start-up nation.” As of today, dozens of high-tech companies, in addition to hedge funds, have announced that they will withdraw their investments and bank accounts from Israel, if they haven’t already done so. Hundreds of renowned economists, including the sitting and past heads of the Bank of Israel, have warned of the implications the reform will have on Israel’s standing in the global economy, as have international banks and credit rating agencies.

Put together, these represent the most considerable threats to Israel’s economy in decades.

The government is also meeting fierce opposition from the heart of the civil service: In an extremely rare political statement, the chief justice of the Supreme Court of Israel, Esther Hayut, called the reform “a plan to crush the judicial system” and threatened she would quit if it were to pass. She is joined by legal advisers to the government and the Knesset, as well as high-ranking officers in the army and the police, who are concerned with the government’s plans.

WHY REFORM NOW?
The reform that Prime Minister Benjamin Netanyahu is advancing was largely masterminded by two relatively lesser known Israeli politicians: Justice Minister Yariv Levin and Simcha Rotman, a member of Bezalel Smotrich’s extreme-right Religious Zionist Party and chairman of the Knesset Constitution, Law, and Justice Committee. Both Smotrich and Rothman are lawyers who have led a years-long campaign against Israel’s judicial system, and particularly against its high court, claiming that it “took over” as part of a “deep state” run by the elites that continues to impose its liberal ideas on a mainly conservative Israeli public, and denies power to this public’s legitimate representatives in the Knesset and government.

Their reform is supposed to “heal” Israel’s democracy by returning power to the executive and legislative branches. Its first stage consists of four main elements: granting the ruling coalition total control over the appointment of new judges, making it almost impossible for the high court to invalidate new laws that infringe on human rights, allowing the Knesset to overrule such decisions in the rare cases that they are made, abolishing the courts’ ability to review decisions made by national or local authorities on the basis of their “plausibility,” and allowing ministers to ignore the guidance of their legal advisers. In Israel’s unicameral system of government—in which the Knesset is de facto controlled by the governing coalition, where there is no Constitution, and where the courts are currently the only check on the executive branch—such reforms would give the government near-unfettered powers. The next steps were not detailed yet, but they expect to further weaken the judicial system vis-à-vis the executive branch.

Yet knowing how enfeebled Israeli democracy is in the first place, and how the very same high court failed to defend the rights of Palestinians and other underprivileged groups over the years, one must wonder why Netanyahu chose his sixth term in office to push through these dramatic reforms.

The first and most obvious answer lies with his own legal predicament. Netanyahu is on trial on four charges of bribery, fraud, and breach of trust. If convicted, he is likely to serve years behind bars. He therefore has every reason to seek to control the legal system, appoint judges that may deal with any future appeals, or appoint a new general attorney who will magically make his trial disappear. Pure and simple revenge against the legal system that put him on trial is also a motive.

The same personal motivations go for Aryeh Deri, leader of the Haredi Shas party and one of Netanyahu’s senior coalition partners, whose past convictions for bribery and tax evasion led the high court in January to disqualify him from serving as a minister. Deri has even more immediate reasons to weaken the court and overrule its decisions.

Deri is also a representative of a large community that has regarded the court as one of its principal enemies for decades, especially since it invalidated laws that run contrary to one of Israel’s Basic Laws (which act as quasi-constitutional). For example, the court quashed exempting yeshiva students from military service, one of the most sensitive core issues pertaining to Israel’s Haredi population. Other rulings by the courts, especially those concerning LGTBQ rights or allowing commercial activities on Jewish holidays, were criticized by Haredi parties.

The settler movement and its political supporters on the far (and not so far) right also have a long history of animosity toward the the judicial system. In 1979, the court ruled that land expropriations from Palestinians under the auspices of “security reasons” could no longer be used to build new Jewish settlements in the West Bank, as had been the case until that point. In 2020, the high court invalidated a law allowing the state to expropriate private Palestinian land upon which thousands of illegal settler homes had already been built.

With the rise of far-right extremists, it was clear that one of their goals would be to get rid of legal obstacles that prevent, or at the very least slow down, the implementation of an even deeper, and more long-lasting, apartheid system in the West Bank.

Smotrich, now finance minister, is the author of Israel’s Decisive Plan, in which he offered the Palestinians three options: accept Jewish supremacy, immigrate, or “be dealt with by the security forces with a strong hand.” Ben Gvir, who is playing a crucial role in Netanyahu’s new government as national security minister, was a member of the racist Kahane movement and an admirer of Baruch Goldstein, a settler who murdered Palestinian worshipers in Hebron in 1994. They both regard the presence of representatives of Palestinian citizens of Israel in the Knesset as “a mistake” that requires mending.

Thus, it is no wonder that the various elements of the new government perceive the results of the last elections, which gave them a comfortable 64-seat majority, as a once-in-a-lifetime opportunity to change the balance in Israeli society. Beyond making the Israeli occupation of the West Bank irreversible, the government has a whole barrage of illiberal goals it hopes to advance, which it is saving for the day after the courts are defanged: increasing the reach of the Chief Rabbinate; deporting African asylum seekers; shutting down the country’s public broadcaster and changing the landscape of Israeli media; reshaping the education system; and curtailing labor unions. Still, perhaps the most dangerous and far-reaching of them all is the plan to outlaw most of the Palestinian parties in Knesset. Such a move would essentially rob more than 20 percent of citizens of the right to vote, and would ensure the far right’s eternal rule.

Continue reading →