Latest Headlines and Breaking News from Around the World
Fresh news
for 2023

In Israel, the Hobbling of the Supreme Court Is Just the Start

Protesters gather at night. In the foreground is the blue and white Israeli flag, stained with red.
A protest near the Israeli Parliament in Jerusalem on Monday after lawmakers passed a bill restricting the courts. Credit...Amir Cohen/Reuters

TEL AVIV — Many Israelis are bracing for what comes next. Anger over a bill that eliminates the courts’ power to overturn government and ministerial decisions on grounds of reasonableness, and the constitutional overhaul of which it’s part, had set off huge protests for seven months. Just before the bill’s passage on Monday, more than 1,100 air force reservists, including more than 400 pilots, declared that they would refuse to turn up for duty if the legislation was approved. In the aftermath of the vote, tens of thousands of protesters, in a collective cry of rage, blocked highways, shut down major intersections, and confronted a police force intent on dispersing them with horses, water cannons and brute force. Dozens were arrested.

As the bill cleared Parliament 64-0 — all 56 opposition members walked out to boycott the vote — petitions challenging the legislation were quickly submitted to the Supreme Court in the hope that it would strike down the new law. That hope, however, may be dashed.

All the proposed components of the overhaul — a concerted effort to entrench the government’s hold on power — are amendments to the Basic Laws, the body of legislation that serves as Israel’s de facto constitution. The Supreme Court striking down an amendment to a Basic Law is tantamount to accepting the idea of an “unconstitutional constitutional amendment”: theoretically possible, but incredibly unlikely. It’s true the court has declared it has the power to invalidate amendments to the Basic Laws, but only on very narrow grounds, such as denial of the identity of Israel as a Jewish and democratic state.

The new law certainly does damage to Israel’s democracy — for example, it opens the door to corruption — but whether the court will determine it denies the democratic nature of the state is very much an open question.

A more plausible scenario is that the Supreme Court will wait it out to see if other components of the proposed overhaul will pass, especially those dealing with judicial appointments, weakening the independence of legal counsels within government ministries, and limits on judicial review of legislation. If that happens, key checks inside the government will be eroded and judicial review in Israel will effectively end. This will give Benjamin Netanyahu’s government control not just of Parliament, but also effective control of both the judiciary and the independent civil service, eviscerating the country’s already fragile separation of powers. In that case, the court will have an easier task striking down the whole package.

But “waiting it out” entails significant risks. Three of the most liberal judges, including the court’s president, are due to retire (two this coming October, the third in October 2024). Should they be replaced by more conservative judges — a likely scenario with the current government, and a near certainty if it succeeds in politicizing the appointment mechanism — the chances of striking down the broader plan diminish considerably, allowing the constitutional overhaul to take place and turning Israel into a country where the government rules with very few brakes on its power.

In the days leading up to and after the vote, there was much parsing of the specifics of the bill, including ending “reasonableness” as a legal standard for overturning government decisions. This misses the point. The reasonableness bill cannot be divorced from the entire package of legislation, which, taken together, will end Israeli democracy as we know it. It’s clear this government intends to pass all components of the overhaul.

Key members of Mr. Netanyahu’s government have already said as much, announcing that judicial appointments will be the next item on the agenda when Parliament returns in October. While Mr. Netanyahu has said he will try to reach agreements with the opposition in the interim, previous attempts to achieve consensus have failed. The prospects for compromise are slim, particularly given the internal pressure from his coalition members to push the agenda through.

From the point of view of Mr. Netanyahu’s administration, weakening Israel’s already embattled democracy is not a goal in itself. It is a means to an end. Once checks on government power will be removed, his coalition can move forward with its substantive agenda: strengthening its hold on the West Bank, constructing more settlements there, and eventually annexing those territories; increasing financial support to ultra-Orthodox Jews and enshrining their exemption from military duty; curtailing advancements made by the L.G.B.T.Q. community; scaling back women’s rights, especially those regarding religiously driven gender segregation and marriage and divorce; and advancing the rights and interests of Jews over other groups throughout Israel and the occupied territories, to the detriment of Israel’s Palestinian citizens and other minorities.

This is not mere speculation. Existing agreements among the coalition are explicit about these goals and legislation reflecting this agenda has already been introduced. Examples are numerous, so consider the following from the past few weeks: a proposal to expand the use of “admission committees” in small towns that effectively prevent Arabs and other minorities from living in predominately Jewish municipalities; a law that would authorize the minister of national security, Itamar Ben-Gvir, an extreme right-wing politician convicted of supporting the Jewish terrorist organization Kach, to detain citizens that he and other officials believe pose “real harm to public security”; and expansive changes in media regulations that would politicize the agency in charge of television broadcasts while extending benefits to the pro-Netanyahu Channel 14.

These planned steps would join legislation that has already passed. Two notable examples are the gargantuan transfer of funds to ultra-Orthodox schools and educational institutions, few of which teach the core secular curriculum (math, English, basic science) needed to assimilate in general society, and a law that granted Mr. Ben-Gvir more control over the police in determining its policies and its priorities, including investigations. To this, we should add subtler but no less drastic changes to the civil service, once heralded as professional and nonpartisan. The government seems intent on introducing a system of spoils, giving jobs to party supporters. Political firings and hirings have expanded, with no meaningful scrutiny.

Since January, most of those who have taken to the streets did so in the belief that the government is set on a path to violate the most basic compact between the state and its citizens and that their country could cease to be a democracy. But something deeper is also at work. It is not only the possible breakdown of Israeli democracy, flawed as it may be. It is the unraveling of Israel’s basic identity, that of a Jewish and democratic state.

Across Israel, there is growing alarm about the rise of religion in the public sphere and the privileging of Jewish interests inside Israel and in the occupied territories. In a country that devotes more and more resources to maintain the occupation and the settlements; in a country with no separation of religion and state, where marriages are subject to religious law and allowed only for heterosexual couples; and in a country that allocates tremendous resources to religious institutions, where the ultra-Orthodox do not serve in the military and their participation in the labor market is extremely low, insisting that the very textural fabric of Israeli society is both Jewish and democratic is becoming less and less convincing. The battle in the streets is not just about the constitutional overhaul. It is whether Israel can have a future as a liberal democracy.

For that future to happen, a new social contract for Israel and Israelis is needed. In the past seven months, I’ve spoken to hundreds of concerned citizens. With almost no exception, every meeting ends with a plea that I provide some hope. So here goes: Since its establishment, Israel has become only more fragmented and polarized. And yet the past seven months of civic mobilization and democratic awakening have been nothing short of a miracle, bringing people together in a way that was once inconceivable.

To be sure, this mobilization is far from perfect, but it holds promise for the liberal camp as it starts to reconstruct old alliances and forge new ones. Perhaps, then, despite pervasive skepticism and despair, this will be the beginning of a better path for this country. Despite everything, I try to remain optimistic.

Adam Shinar is a professor of constitutional law at Reichman University.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.

Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.

Posted on 26 Jul 2023 11:00 link