As a parliamentary democracy, the State of Israel is no stranger to protests and rowdy sessions in its parliament, the Knesset. Yet what occurred in March 2023 set a new record of discord and civil disIDFobedience. The Israeli trade union, the Histadrut, called for a national strike and the country came to a near standstill. Banks closed, the Tel Aviv Stock Exchanged stopped trading, and university presidents, rectors, and administrators joined in the protests, along with hospitals, doctors, and nurses.
What’s more ominous is that reservists in the Israel Defense Force (IDF) refused to show up for mandatory annual reserve duty - politicising the vaunted defender of the nation. Even McDonalds closed its two hundred kosher and non-kosher restaurants. One thing that remained open was the trains but they were busy transporting protesters to the capital.
What was the cause of this civic upheaval? Protesters were decrying the rise of religious and civic fascism and warning that Israeli democracy was in danger. Civil war is a real possibility, they claimed.
The newly-installed Netanyahu government’s proposed judicial reform bill was the putative cause. The firing of his own minister of defence, Yoav Gallant, was the spark that lit the nationwide strike. Gallant, who watched as forty per cent of soldiers failed to report for reserve duty - an offence punishable by jail time - gave a speech while Netanyahu was out of the country. He urged a pause in reform legislation until things calmed down. The prime minister sacked him. The protestors treated him as a martyr for the cause of democracy. The government viewed him as disloyal and cowardly for bowing down to military desertion, rather than disciplining it.
All of this happened against the backdrop of increasing Palestinian militancy in the West Bank and Jerusalem, a potential nuclear bomb breakout with Iran, and a stand-off with long-time foe Hezbollah in Lebanon.
While reform of the Israeli Supreme Court is the key issue, it is sandwiched by an even greater factor that affects the wider world.
The Background
Israel is a democracy with a unicameral parliament. The executive and legislative branches are mixed together. Only the judiciary stands apart. For the first forty-five years of the Jewish state’s existence, according to Avi Bell, a law professor, the Knesset made the laws and no legislation could be overturned by the Supreme Court. It was a court of appeals but its involvement with the political process was non-existent.
Then in 1993 Supreme Court President, Aharon Barak, began his own campaign of ‘judicial reform,’ when the court became the last stop on all issues. This changed everything: the supreme court could strike down any law it did not find ‘reasonable,’ an elastic term. Since Israel lacks a written constitution to restrain all branches of government (it has basic laws which hold de facto quasi-constitutional status), it gave the fifteen judges of the court inordinate power to overturn legislation from a democratically elected parliament. In addition, government appointments could be revoked and agreements between key parties torpedoed. Even the national security issue of a separation wall between Israel and the West Bank was determined by the court, including its boundaries.
The reforms the Netanyahu government are offering generally want to bring the court back to the pre-1993 status quo, with modifications. For example, the only way a Knesset-initiated law can be overturned is if all fifteen judges vote unanimously. Another change is that instead of allowing only the judiciary to pick its successors, the democratically elected government will do so, similar to the American practice. Protesters are calling such changes ‘undemocratic’ and ‘fascist.’ Are they? Why is it okay for American politicians to select supreme court judges but not Israeli politicians?
It is the ever-present balancing act in democratic societies to have the balance of power and separation of power between the three branches of government - the executive, legislative, and judiciary. When these things are operative, democracy flourishes. When they don’t, there is invariably less freedom.
To complicate the situation: over the decades a de facto ‘fourth branch of government’ has evolved, known as the administrative state, the ‘deep state’ in the USA, and the ‘blob’ in Britain. These agencies have very limited accountability and yet exercise real power. Their regulations, which can fill volumes, have the force of law. Yet the electorate had nothing to do with their appointments yet is subject to their decrees.
In the case of Israel, like other Western democracies, the judiciary is a stronghold of secular, leftist European elites who are gravely concerned at the rise of the religious right parties. This concern is shared by the leftists in the greater society. In Netanyahu’s electoral win of November 2022, he gained sixty-four of the sixty-one seats needed to form a government (the Knesset has one hundred and twenty seats). This was viewed with alarm by the political and judicial Left.
Part of the Left’s concern is the two coalition partners of Netanyahu. Otzma Yehudit Party (six seats) led by National Security Minister Itamar Ben-Gvir and the Religious Zionism Party (seven seats) led by Finance Minister Bezalel Smotrich. Both men are considered outspoken, politically incorrect ‘far right’ politicians that keep the Left awake at night. Both men are considered ‘anti-Arab’ and ‘anti-secular.’ Ben Gvir’s visit to the Temple Mount caused a firestorm, as were his comments on destroying Arab homes of convicted terrorists during the Muslim holy fasting month of Ramadhan - something the government traditionally considered too volatile to do. Smotrich said: “There is no such thing as Palestinians because there is no such thing as a Palestinian people.” While these comments are provocative, they need, as in all things, to be seen in their largest context.
Israel's history, heritage, location, and destiny have propelled it to the front lines. It can be likened to the first pin in the bowling alley. If hit in the right place, it and all the other pins behind it go flying into disarray. In our second and final part, we will see how the events in Israel foreshadow the even bigger global picture. TO BE CONTINUED
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