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How Israel’s judicial reforms will change society


Hundreds of thousands of Israelis throughout the country are protesting the first of a series of proposed radical changes to the country’s judicial system, which they fear will weaken checks on the executive branch — consolidating power under right-wing Prime Minister Benjamin Netanyahu and his allies.

Over the weekend tens of thousands of protesters marched from Tel Aviv to Jerusalem, a distance of 70 kilometers; they’ve called for general strikes and set up a tent city outside Israel’s parliament, the Knesset, as part of months-long protests against the proposed changes. The changes would give the Knesset final say over judicial appointments and give it the power to overturn Supreme Court decisions with a simple majority.

The first of the new laws is expected to come up for a vote as early as Monday after a round of debate on Sunday. That policy will overturn the doctrine which gives Israel’s Supreme Court oversight of the government’s cabinet and ministerial selections, as well as the power to rule on the “reasonableness” of a government decision or policy. Should the measure pass, the courts — and Israeli society — will have little recourse to challenge government policy they understand to be illegal, wasteful, fraudulent, or undemocratic.

All of this happens as Israeli Prime Minister Benjamin Netanyahu recovers from having a pacemaker installed — though his hospitalization hasn’t stopped him from pushing his legislation forward. President Isaac Herzog, who just wrapped up a trip to Washington, DC, has come out in support of a strong judiciary and has attempted to broker a compromise for the past several months as protests continued.

Many sectors of Israeli society have come out against the legislation, most prominently elite Israeli Defense Force (IDF) reserve pilots and members of the Air Force. Israel’s largest trade union has also threatened a strike, and the Israel Medical Association has also indicated that it plans to strike should the legislation go through.

Changes to the judicial system would drastically alter Israeli society on every conceivable level — likely pushing it in a more religious, hard-line direction under Netanyahu and his allies. Though proponents of the changes claim the intention is to put power in the hands of elected officials rather than unelected judges, it’s much more serious, protesters say; it’s about whether Israel will remain a democratic state or become a religious autocracy.

How these reforms are possible in Israeli democracy

The concept of the “reasonableness” doctrine is a peculiar one, but, advocates say, it’s critical to Israeli democracy and an important part of the court’s checks on the legislative and executive branches. There is a set of Basic Laws governing elections, the makeup of the Knesset, the role of the judiciary, and the military, among other subjects. At an undetermined future date, the Basic Laws will “constitute together, with an appropriate introduction and several general rulings, the constitution of the State of Israel,” according to the Knesset’s website.

But Israel lacks a written constitution; therefore decisions that the state makes can’t be measured by constitutionality. Instead they’re measured by “reasonableness” — in a sense, a question about whether it’s reasonable to use state resources and power in the suggested way.

“This is about whether the resources of the state will actually be used for the public interest,” Amichai Cohen, a legal expert at the Israel Democracy Institute, a Jerusalem-based research group, told the New York Times. “Will the ministers interpret this elimination of reasonableness as carte blanche to just use the resources at their disposal, as they see fit, for political reasons?”

The current measure up for debate includes only a provision to “completely block courts from evaluating the ‘reasonableness’ of administrative decisions made by the cabinet or its ministers,” according to the Times of Israel. The Knesset adjourns July 30 for a recess, but the next possible measures would include increased political oversight of judicial appointments as well as an extremely controversial measure to override Supreme Court invalidations of legislation via a simple majority, though Netanyahu has said he would not pursue that measure.

Despite the mass movement against the judicial changes, they do have some support, particularly in the increasingly powerful religious, Zionist, and ultra-Orthodox Haredi community. The Haredi, whose social and religious codes encourage them to shun secular life, have formed a powerful bloc with Netanyahu’s Likud party, and have pushed for the court to extend the community’s exemption from Israel’s compulsory military service.

The proposed judicial reforms would push Israeli politics far to the right. Netanyahu’s governing coalition, made up of ultra-nationalist and ultra-Orthodox politicians, has a slim majority in the Knesset — only four seats. But in context, that’s a pretty significant majority given the fact that there has not been such a majority in years. And that coalition desperately needs each other; Likud, Netanyahu’s party, needs the Religious Zionism, Jewish Power, and Haredi parties to stay in power, and they need Netanyahu to push through the policies, and especially the religious policies, that they want.

“The ultra-Orthodox Jewish world is an opportunist. They’re going to be in a government who will give them what they want,” Rabbi Amichai Lau-Lavie, a co-founder of the progressive Jewish community Lab/Shul NYC and an Israeli-American, told Vox in an interview, though “the shift to the right in Haredi camp is fairly recent. The real issue is the religious Zionist camp.”

It’s worth remembering, too, that Netanyahu is still on trial on charges of corruption and fraud. “It’s hard to distinguish between his desire to avoid jail and his desire to remain in power,” David Myers, a professor of Jewish history at UCLA, told Vox in an interview.

In some ways, the current state goes back to 2009, the start of what Myers called the “Netanyahu decade.”

“During that long decade, he already initiated a series of steps to strip away some of the features of liberal democracy in Israel, trying to restrict the activity of human and civil rights organizations, trying to restrict the speech of artists who receive government subsidies, trying to restrict educational curricula,” he said. Those actions, he said, escalated the movement toward illiberal democracy and majority rule as it’s being practiced in Israel today. But the question of whether Israel can be both religious and democratic goes back further, to its founding in 1948.

What does it mean for Israelis, Palestinians, and Jewish people everywhere?

The present protests are unprecedented in Israel’s modern history; “It’s brought out on to the streets people who never thought they would protest against the Jewish state,” Myers said, including members of the military.

It has also brought out counter-protesters. Supporters of the new legislation turned out in a counter-protest in Tel Aviv Sunday, with right-wing Finance Minister Bezalel Smotrich headlining the event. “Those against the reform, I understand how you’re feeling, this is how we felt during Oslo,” Smotrich said during his speech, referencing agreements between the state of Israel and the Palestine Liberation Organization to move toward Palestinian self-determination. Smotrich is a member of the far-right Religious Zionist political party and a proponent of increased Jewish settlements in the Palestinian West Bank who recently claimed that there is “no such thing as a Palestinian people.”

“On one level, Israel’s democracy crisis is about the occupation,” Myers said. Since its founding in 1948, Israel has forced Palestinian people out of their homes, out of citizenship, and out of public life; later, after the Six-Day, or 1967, War, Israel also began occupying the West Bank, Gaza, and East Jerusalem, causing a second Palestinian exodus. And under Netanyahu, the speed, scale, and destructive power of Jewish settlements in the West Bank and evictions of Palestinians there and in East Jerusalem has been dizzying.

“We’re saying, defend democracy, save democracy — Israel has been a partial democracy for too long,” Lau-Lavie said, referring to the Israeli state’s policies regarding Palestine.

“If you’re Jewish, there’s some semblance of democracy — you can have laws, you can have debates, you can do all sorts of things, there can be disagreements,” Diana Buttu, a Haifa-based analyst and former legal adviser to Palestine Liberation Organization Chairman Mahmoud Abbas, told Vox in an interview. “But if you’re Palestinian, that is definitely not the case, and when the courts have been faced with the question, ‘Is Israel a democracy or is it a Jewish state,’ it’s always sided on the side of being a Jewish state.”

While some Israeli protesters and American Jews are having acutely uncomfortable and challenging discussions about how deeply intertwined the occupation is with Israel’s identity, “the occupation is absent from conversation” Buttu said.

“With the protests, what we’re seeing is that this is about the occupation — and yet the occupation is so absent from any of the discourse of these protests,” she said. “I have yet to see anyone carrying even a slogan, even a sign that makes the connection between what Israel is doing to Palestinians and this protest movement. It’s completely and totally absent.”

Should the challenge to the reasonableness doctrine be approved by the Knesset early next week, as it is expected to be, thousands of members of Israel’s military reserves, and in particular elite pilots, have said they will not show up for duty in the Israeli Defense Force, or IDF. There will also likely be a general strike, as Israel’s biggest trade union has as of yet failed to reach a compromise with the government on the legislation.

Philosophically, there’s also the existential consequence of the legislation; according to Lau-Lavie, if it passes, “That’s the end of Israel as we know it.”