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Israel’s Netanyahu Facing Off Against the Supreme Court and Proposing to Limit Judicial Independence

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Democracy is not just about holding elections. It is a set of institutions, ideas and practices that allow citizens a continuous, decisive voice in shaping their government and its policies.

The new Israeli government, headed by Benjamin Netanyahu and sworn in on Dec. 29, 2022, is a coalition of the most extreme right-wing and religious parties in the history of the state. This government presents a major threat to Israeli democracy, and it does so on multiple fronts.

That threat has not passed unnoticed. Tens of thousands of Israelis protested in Tel Aviv during the first weeks of January 2023 against the government’s proposed reform policies. Smaller demonstrations took place in other cities, and organizers promise to keep the heat on.

Perhaps the most important front in the battle is the Israeli Supreme Court. On Jan. 12, court President Esther Hayut gave a highly uncharacteristic public speech in which she warned that the Netanyahu government’s proposed reforms are “meant to be a mortal wound to the independence of the judiciary, and to turn it into a silent institution.”

The clash came to a head when, on Jan. 18, the justices ruled 10-1 against the appointment of Aryeh Deri as a senior minister in Netanyahu’s Cabinet because of what the court said was his “backlog of criminal convictions.” Deri, the leader of the ultra-Orthodox Shas Party, served time in jail, and the judges’ ruling said that he should not be in the government. The ruling means that Netanyahu will either face a coalition crisis or else find a way to circumvent the court’s ruling, which will place the government above the law.

The conflict between the Supreme Court and Netanyahu’s government illustrates one of the four ways that Israel’s democratic institutions, customs and practices are endangered by the new government. Here are those threats, based on policies and legislation that have been proposed or are already in process.

  1. Hostility to freedom of speech and dissent

    Prime Minister Netanyahu has been working for years to consolidate his grip on Israeli media. The new government plans to accelerate the privatization of media in the hands of friendly interests and brand as anti-Israeli and treasonous media outlets its leaders deem hostile. The signs of this delegitimization are already here.

    Even before the newly appointed minister of national security, Itamar Ben-Gvir, took office, the police briefly arrested and interrogated journalist Israel Frey after he posted a controversial tweet hinting that the Israeli military may be a legitimate target of Palestinian attacks. The police claimed the tweet incited terrorism, and the arrest showed journalists who favor an open and free press that they might face retaliation.

    Ben-Gvir, the head of the Jewish Power party and now overseer of the police, was convicted in the past for supporting Jewish terrorism and for racist incitement against Israel’s Arab minority. In his inauguration speech on Jan. 1, the new minister branded “Jewish anarchists” – a code he often uses for leftists and human rights organizations – as threats that “needed to be dealt with.”

  2. Diminishing equal rights

    The Netanyahu government appears poised to allow discrimination against the LGBTQ community and women, thus undermining equality before the law, an important democratic principle.

    Incoming National Missions Minister Orit Strock said in an interview in late December, “If a doctor is asked to give any type of treatment to someone that violates his religious faith, if there is another doctor who can do it, then you can’t force them to provide treatment.”

    Netanyahu condemned Strock and other coalition members who stated that gay people could be denied service by businesses if serving them contradicts the business owner’s religious beliefs. Yet, journalists report that Likud and other coalition partners agreed in writing to amend the law against discrimination to allow exactly such a policy.

    During early coalition negotiations, ultra-Orthodox parties demanded new legislation that would allow gender-based segregation in public spaces and events. Netanyahu has reportedly agreed, which means these laws are expected to pass the Knesset. Segregation in educational spheres, public transportation and public events is often translated into exclusion of women and weakening of women’s voices, and hence contradicts basic democratic principles such as freedom and equality.

  3. West Bank annexation and apartheid

    The new government’s intention to de facto annex the West Bank will turn hollow Israel’s claims of being the only democracy in the Middle East.

    In a Dec. 28 tweet, Netanyahu announced that his government’s guidelines will include the principle that “the Jewish people have an exclusive and unquestionable right to all areas of the Land of Israel,” including the West Bank, occupied by Israel since 1967 and populated by a Palestinian majority.

    These guidelines, combined with new nominations of far right politician Bezalel Smotrich as the minister responsible for Jewish settlements and Ben-Gvir as the minister in charge of the border police, could provide justification for annexation of the occupied Palestinian territories.

    Based on much of the rhetoric of right-wing leaders such as Smotrich, Palestinian residents of these lands will have neither equal rights nor voting rights. This means apartheid, not democracy.

  4. Erasing the separation of powers

    In the Israeli system, the executive and legislative branches are always controlled by the same coalition. The courts are the only institution that can check the power of the ruling parties and uphold the country’s Basic Laws, which provide rights in the absence of a formal constitution.

    But the new government wants to erase this separation of power and explicitly aims at weakening the courts. On Jan. 4, after less than a week in his role, new Minister of Justice Yariv Levin announced the government’s plan for a radical judicial reform, which will include the “override clause.” That clause will allow a simple majority in the Knesset to re-enact any law struck down by the Supreme Court as unconstitutional.

    This would, in effect, remove all barriers placed upon the power of the majority. The coalition could legislate policies that are not only unconstitutional, but which clearly contradict ideas of human rights and equality that are enshrined in Israel’s Declaration of Independence.

    The government’s plan also includes reforms that would allow the coalition to control nomination of judges. In a small country that does not have a strong constitution and in which there is no separation of power between the executive and legislature, this move, again, would weaken the authority of the court and make judges beholden to politicians.

    These so-called reforms “threaten to destroy the entire constitutional structure of the State of Israel,” said Yair Lapid, head of the opposition and former prime minister.

The danger of Netanyahu’s woes

All of these threats to Israeli democracy are more likely to materialize because of Netanyahu’s current personal problems.

Netanyahu is an experienced politician who in the past managed to quell the most extreme elements of his coalition partners, and his own Likud party, by paying them lip service while being more cautious on actual policies.

Many analysts do not believe this time will be the same.

The prime minister is facing corruption and fraud trials in three separate cases and is focused on protecting himself through whatever legislative and executive power he can muster. Netanyahu is beholden to his coalition for this task, which makes him vulnerable to their ultra-Orthodox agenda and demands for laws to perpetuate Jewish supremacy.

Any one of these changes present a serious democratic erosion. Together, they pose a clear danger to the existence of Israeli democracy.

Israel will continue to have elections in the future, but it’s an open question whether these will still be free and fair. With no judicial oversight, with constant disregard of human rights, with annexation of Palestinian lands and the disenfranchising of their people, and with a media that normalizes all of these processes, the answer is probably no.

As in Turkey, Hungary or even Russia, Israel could become a democracy in form only, devoid of all the ideas and institutions that underpin a government that is actually of the people and by the people.

This story has been updated to reflect the Israeli Supreme Court’s recent actions regarding the Netanyahu government.

The Conversation

Boaz Atzili, Associate Professor of International Relations, American University School of International Service

This article is republished from The Conversation under a Creative Commons license. Read the original article.