Magistratura democratica
Osservatorio internazionale

Israeli Democracy at Risk: The Menace of Judicial Overhaul

di Avi Rubin
professore associato presso il Dipartimento di Studi sul Medio Oriente, Ben-Gurion University of the Negev

In early February, I launched my day with the first cup of coffee and a quick glimpse at my email inbox, the way I do every morning, the way many people do everywhere. While skimming through the email, I was shocked to discover an official summons to a hearing at the Knesset Education, Culture, and Sports Committee. The hearing was entitled "Political Bias and Silencing in the Academia." The hearing was the initiative of "Im Tirzu, a radical-right NGO active on Israeli university campuses, known for its fascist or proto-fascist inclinations. A day earlier, this organization had sent an outraged letter to the rector and president of my university, accusing me of using my class for political brainwashing and indoctrination. The summons to the parliamentary committee referred to a lesson I taught in my course, "Law Society and Justice in the Middle East." It took me a moment to ponder the summons and decide against appearing before the committee. The discussion's title and the political context were clear about the intentions of its initiators, namely, to stage a McCarthyst spectacle meant to terrorize academic faculty members. I felt that my refusal to appear before the committee would send a necessary message about academic freedom in the context of a new radical government whose shocking plans had been made clear a few weeks earlier. 

In the lesson, which evoked the wrath of the Likud MP who chaired the committee and his associates, I explained the proposed legislation on overhauling the judiciary, or "judicial reform," as our government called it. I based my analysis on the details that the Justice Minister, Yariv Levin, had provided in a news conference and on the reactions of leading Israeli law professors. As I do in all my courses, I avoided indoctrination and let my students form their opinions based on facts and critical analysis. 

In that lesson, I presented the facts. Namely, I described the specificities of the proposed legislation and the radical change they signified. True, I offered my observations about the prospective catastrophic consequences in terms of democratic commitments, the tyranny of the majority, and the potential dismantling of the rule of law. It was my duty and obligation as a university professor in a democratic country. Nevertheless, in the present political ambiance in Israel, signified by gaslighting and fake news, such a trivial class discussion turned into a "political" scandal that resulted in an absurd parliamentary discussion. Fortunately, academic freedom is still a solid right in Israel, protected by the courts. I also enjoyed unreserved support from my university rector, Prof. Haim Hames, and the university's president, Prof. Daniel Chamovitz. I drew strength from many colleagues and students, worried by these early and unmistakable signs of possible political persecution. An editorial in Haaretz warned: "Rubin aptly described the spirit of the time. The government is not hesitating to use all the power to suppress the protest against its radical moves and to gag anyone who doesn’t toe the line." Then, the incredible mass protest movement only started to shape up. Since then, massive demonstrations have shaken Israeli society, unprecedented in magnitude and content. 

Hundreds of thousands of Israelis have demonstrated weekly in cities nationwide for the last three months. A spontaneous protest of 20,000 people, which took place in Tel Aviv on 7 January 2023, became a weekly event of 160,000, paralleled by growing protests in other parts of the country. At a certain point, military pilots and combat soldiers from among the reserve forces declared that they would not report to duty if the legislation passed because they refused to serve an undemocratic regime. Israeli Hi-Tech companies (considered the engine of the Israeli economy) are taking their business abroad. Many professionals and academics are seriously exploring the possibility of leaving the country in case of failure to block this assault on Israeli democracy. This unprecedented eruption of civil society energies and the concerns raised by the international community, including Israel's strategic allies, forced the government of extremists to freeze the legislation for judicial overhaul and negotiate with the opposition parties under the auspices of President Isaac Herzog. However, the Justice Minister and other government members keep stating their intention to stick to the plan and move forward soon enough. Other MPs regret the haste, seeing it as a tactical mistake, but they do not have a second thought about the sense of this legislation. The political atmosphere is unprecedently volatile, one of total mistrust. The protesters attribute to Prime Minister Netanyahu's opportunistic motivations. We believe the judicial overhaul was designed to tame the judicial branch in the context of Netnyahu's indictment for fraud, breach of trust, and accepting bribes. 

Why do so many Israelis lose sleep over the judicial overhaul, reconsider the future of their children and their future in the country, and why do they bother to crowd together week after week? The answer is quite straightforward: they understand that if realized, the proposed legislation will transform Israeli already-fragile democracy into an authoritarian regime. Though vibrant and displaying decades of commitment to democratic norms and the rule of law, Israeli democracy is frail in its structure. Instead of a constitution or a Bill of Rights, both nonexistent in Israel, it has basic laws that can be easily revised. Our system lacks a substantial separation between the legislative and executive branches. It has no bicameral or federal system that can restrain the legislative branch. Fundamental freedoms and human rights are discussed in the courts routinely, and the Supreme Court has a record of rulings that protect citizens from the tyranny of the majority, including minority groups such as Palestinian Arabs and LGBTQ. In fact, the Supreme Court is the only structural mechanism available for restraining the executive branch and enforcing the rule of law through judicial review and by its authority to quash legislation and executive decisions that violate the Basic Laws.  

The following are the most dangerous components of the judicial "reform" advanced by the government. First, it wishes to politicize the Judicial Selection Committee, which in its present form does not allow its politician members an automatic majority. This reform will enable the government to appoint judges identified as politically loyal to the regime. If we adopt a comparative law perspective, such a change in the judicial selection committee has been proven disastrous in Turkey, severely damaging the courts' autonomy and ability to provide justice. 

Secondly, the government wishes to legislate a clause that will override the Supreme Court's authority to nullify legislation that violates Basic Laws. This authority of the Supreme Court is an organic development of its commitment to constitutional law, and it has never been codified. The present government argues that the authority to strike down laws gives the court excessive power, which stands in the government's way when advancing its policies. This is a demagogic argument because, in reality, the Israeli Supreme Court displays a relatively modest record of overturning laws, twenty-two laws in 75 years! If realized, Israel's sole balancing mechanism and constitutional review procedure will cease to exist. 

The third component of the proposed legislation refers to the authority of the Government's legal advisers. In the existing system, legal advisors are appointed to each ministry and the government. Serving as gatekeepers on aspects related to the legality of executive actions, they enjoy independence from dismissal by the ministers. According to the draft bill released by the present government, the legal advisors will become a political "trust appointment," Their legal opinions will be mere advice rather than a binding decision in cases of questionable legality. 

The fourth major component of the proposed legislation is abolishing the "unreasonable grounds" doctrine in reviewing administrative decisions. Developed through decades of court rulings in a system that lacks structural checks and balances, this doctrine was used to overturn administrative decisions that failed to give proper weight and balance to all relevant considerations. It has been employed as a tool for preventing arbitrary or discriminatory decisions. These checks and balances will fade into thin air if the proposed legislation passes. Given the absence of structural checks on the executive branch other than the Supreme Court, even a softer version of the proposed legislation will collapse democratic life in Israel.  

As mentioned earlier, Netanyahu's opportunistic motivations in pushing the judicial overhaul forward are apparent. Yet there are additional motivations involved. The coalition that forms the present government includes some of the most radical groups in the far right. Otzma Yehudit (Jewish Might), for instance, is the ideological offspring of the outlawed Kach party. Its racist leader, Itamar Ben-Gvir, is a convicted criminal who faced dozens of criminal charges and eight convictions. He has advocated for despicable proposals, such as the expulsion of Arab citizens of Israel who would fail to prove loyalty to the state. He serves as the Minister of National Security, a bizarre appointment that could not have been imagined a few years ago. The Religious Zionist Party is yet another significant far-right ultra-nationalist coalition member. For these radical political actors, the proposed legislation is essential in creating a legal infrastructure to make their grand design possible, namely annexing the occupied territories. Considering the existing institutionalized judicial apartheid in the West Bank, one can only imagine the possible horrific consequences for the Israeli Arab citizens once the "judicial reform" passes. 

Religious orthodoxy is yet another salient characteristic of the present government of extremists, which includes a massive and unproportionate representation of the ultra-orthodox Jewish population. As far as the orthodox agendas are concerned, neutralizing the power of the Supreme Court through the "judicial reform" endeavor will pave the way for cracking down on civic freedoms associated with the sizeable secular group in Israel. Now and then, ultra-nationalist and orthodox politicians express their fantasy of transforming Israel into a "Halachic State," a Jewish state governed by religious law. It appears, then, that views once considered esoteric have become a feasible course of action. 

So what's next? Hard to tell. To be sure, Israeli society is experiencing the most dangerous moment in its seventy-five years of existence, more perilous than any external threat. The mass protest movement is gaining momentum and has achieved some success. The government had failed to predict the magnitude and determination of the protestors. The government's failure to present even a single achievement on the one hand and the chaotic atmosphere everywhere on the other is already impacting the economy. The financial indicators are negative, pointing to gloomy economic prospects. There is an air of real danger, perhaps even the threat of a civil war, taking into account the statements of members of this government about their determination to realize the judicial overhaul regardless of the domestic resistance and international pressures. Time will tell; meanwhile, we will keep educating our students about the value of democratic life and the horrific prices paid when they collapse.  


Italian translation available here - Traduzione italiana disponibile qui: 




photo credtis: Eyal Warshavsky/SOPA Images/Zuma   

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