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Israel's democracy is not in peril The real problem is its dehumanising politics

A threat to Israel's democracy? Ahmad Gharabli/AFP/Getty Images

A threat to Israel's democracy? Ahmad Gharabli/AFP/Getty Images


March 3, 2023   5 mins

Given the headlines this week, you’d be forgiven for thinking Israel was on the brink of civil war. In Tel Aviv, on Wednesday, thousands of anti-government protesters were met with water cannons and stun grenades in a clash with police. This “day of disruption” followed eight weeks of protests against prime minister Binyamin Netanyahu’s plans to reform the Supreme Court. In the eyes of the Western media, courageous liberals are fighting to stop Israel’s democracy from sliding into an autocracy.

Reports of the demise of Israeli democracy are, however, greatly exaggerated. The proposed changes relate to the balance of power between the judiciary, the legislative and the executive branches of government — a matter of usually staid debate among Israeli academics and wonks for nearly three decades. Today’s incendiary rhetoric on the issue says more about the vicious and polarised state of Israeli politics than the controversiality of the Supreme Court reforms.

The protest movement should be seen in the context of ongoing political opposition to Netanyahu. The leading activists resisting the reforms today are the same groups who participated in weekly demonstrations calling on him to resign in 2020 and 2021. Back then, they were motivated by the prime minister’s corruption charges, not by the scepter of drastic changes to the judiciary, but the new protests have piggy-backed onto the old ones.

What’s at stake here isn’t the death of the nation’s democracy, but straightforward party politics. And two incidents that took place last week in the Knesset plenum, Israel’s legislature, illustrate just how ugly everyday Israeli politics has become. During a late night of debating and voting last week, Almog Cohen, a politician from the extremist party Otzma Yehudit, started a live video on Facebook from the plenum, in which he randomly insulted opposition members. “You have to speak to him in his language, like a sheep,” he said of one, making clicking noises at him as if summoning an animal. “She has the voice of a woman who mops floors,” he said about another. He then shouted at a politician who is a medical doctor: “I wouldn’t even let you care for my dog.”

Cohen has since expressed regret. But his was an extreme case in a flood of insulting remarks on all sides. One opposition politician compared the current government to Nazis, and another said that Jews of Moroccan origin, who stereotypically support Netanyahu, would rather go back to living under a king than keep Israel a democracy.

That same night, Boaz Toporovsky, prominent in the opposition party Yesh Atid, returned to the Knesset after missing a month of work after being injured in a car crash. He was there to join his colleagues in voting against part of the judicial reform legislative package. Justice Minister Yariv Levin, the reform’s chief proponent, interrupted his presentation of the Bill from the podium to welcome back Toporovsky, saying: “We missed you.” Netanyahu rose from his seat in the plenum to greet Toporosky and shake his hand. Opposition and governing coalition lawmakers followed suit, standing in a cluster around their friend, who was in a neck brace. The moment of collegiality was caught on camera and published widely.

Then came the backlash: journalist Ben Caspit, a well-known Netanyahu critic, called Toporovsky a “poodle”, who should be “wearing the brace on his head” and not his neck. Many of the protests’ organisers said similar things on social media.

Soon after, opposition politicians started apologising for the mortal sin of being seen smiling next to the prime minister. “We weren’t smiling at Netanyahu; we were happy Boaz returned to us,” Yesh Atid legislator Vladimir Beliak tweeted. “The photo that was taken, under the circumstances, looks bad and I apologise for it.”

An apology for smiling in the general vicinity of the prime minister: here is a neat summary of the demonisation that has been normalised in Israeli politics in the last four years, during which time Israel held five elections rife with mudslinging.

We’ve reached a point where political distrust is so great, it’s getting in the way of compromise being reached. The opposition leader Yair Lapid will not negotiate until the governing coalition agrees to halt all legislation on the judicial reform, which is still in its early stages, while talks take place, saying he won’t negotiate “with a gun to [his] head”. His request was denied, out of concern that the opposition will try to drag out negotiations forever. The two factions are refusing to hash it out in a room together, despite a major effort by President Isaac Herzog to bridge the gap.

Yet, when one looks beyond the ferocious partisanship, the difference in opinion is far less gaping than that between fascism and democracy. The debate over judicial activism began when the Knesset passed a Basic Law enshrining basic human rights in 1992. Israel does not have a constitution, but such laws were meant to be the building blocks of one. Still, they were not treated like a constitution until 1995, when the Israeli High Court of Justice’s then-deputy president Aharon Barak interpreted the 1992 Basic Law as having constitutional weight. The judiciary has used it as grounds to strike down new laws it deems unreasonable ever since.

Notably, Israel’s current political crisis was sparked in 2018, in part, by the court overturning a law: specifically, one that exempted Orthodox men who studied Torah full-time from mandatory military service. The governing coalition, torn over how to proceed, was dissolved soon after.

Though the Supreme Court originally based its authority to strike down laws on treating Basic Laws like a constitution, it decided in 2021 that it could also strike down changes to Basic Laws. In other words, the court would decide whether the democratically elected members of Israel’s legislature could amend the constitution.

Whether or not the court should have the authority it demanded in the Barak years is the central question of the current judicial reform. Supreme Court justices were mostly self-selecting in the years after Barak, so they almost exclusively chose new members of the court who agreed with them. Though a law passed in 2009 reducing the weight of judges’ votes in the committee that appoints their colleagues brought more political diversity to the bench, Barak’s activism remains dominant.

Most of the debate in the Knesset today is about the nitty-gritty of the reform and the rhetoric surrounding it — not about the broader concept of needing, once and for all, to democratically decide how judicial review should work in Israel. Few members of the opposition view the court as untouchable. In fact, two of the opposition parties supported or even proposed their own judicial reforms that are almost identical to what is currently on the table. One of them is led by Gideon Sa’ar, who, in his former capacity as interior minister in 2014, had his flagship plan to curb illegal immigration gutted by the court twice, a turn of events that helped to popularise judicial reform on the Israeli Right.

The vast majority of parties in the Knesset say the court’s power to strike down laws should be more limited, but not wholly eliminated. They also broadly agree that the Knesset should be able to re-pass laws that the court struck down, but are arguing over timing, context, permanence, and how big a special majority should do it. The current Bill suggests that the support of 61 out of 120 representatives should be required, meaning that any governing coalition could re-pass a law. The opposition is arguing for a larger majority, so that invoking the “override clause” would require working across the aisle.

The reform also involves adding more political figures to Israel’s Judicial Selection Committee, so as to give politicians an advantage over jurists. The Bill’s proponents compare it to the United States, where Supreme Court justices are chosen by Democrats or Republicans, but that fact does not put the country’s democratic status in doubt; its opponents point out that the US has a constitution and argue that Israel’s lack of one could make judges beholden to politicians.

These are not debates about democracy or dictatorship. The discussion is, in fact, about the proper balance between different elements of a democracy. If politicians can work together to strengthen Israeli democracy, as both sides say they want to do, they could reach a compromise. But to do so, they’ll have to stop demonising each other.


Lahav Harkov is Senior Political Correspondent for Jewish Insider and a fellow at the Misgav Institute for National Security and Zionist Strategy.

LahavHarkov

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Emmanuel MARTIN
Emmanuel MARTIN
1 year ago

Thx for setting the clock straight. Like Orban, Trump or Nigel Farage, Netanyahou is a right wing populist. Right wing populist represent a legitimate democratic opinion, even though the laptop class hate them because they propose to adopt different policies than globalism and open borders.
Such is the stranglehold of the cultural left on our media and judiciary that they can shift the mainstream narrative to calling any opposition party “undemocratic”.

Stephen Quilley
Stephen Quilley
1 year ago

What Emmanuel said 🙂

Stephen Quilley
Stephen Quilley
1 year ago

What Emmanuel said 🙂

Emmanuel MARTIN
Emmanuel MARTIN
1 year ago

Thx for setting the clock straight. Like Orban, Trump or Nigel Farage, Netanyahou is a right wing populist. Right wing populist represent a legitimate democratic opinion, even though the laptop class hate them because they propose to adopt different policies than globalism and open borders.
Such is the stranglehold of the cultural left on our media and judiciary that they can shift the mainstream narrative to calling any opposition party “undemocratic”.

Nicky Samengo-Turner
Nicky Samengo-Turner
1 year ago

Why do the Gulf states not support the Palestinians financially, or indeed give them a new ” homeland”?

Frank McCusker
Frank McCusker
1 year ago

Why doesn’t Putin join the Red Cross?

Frank McCusker
Frank McCusker
1 year ago

Why doesn’t Putin join the Red Cross?

Nicky Samengo-Turner
Nicky Samengo-Turner
1 year ago

Why do the Gulf states not support the Palestinians financially, or indeed give them a new ” homeland”?

Isabel Ward
Isabel Ward
1 year ago

This is bizarre coming from someone on theJP whose editor continuously pushes his editorial and articles with the agenda that democracy is under threat. Indeed many of its articles imply there could be civil war.

AJ Mac
AJ Mac
1 year ago
Reply to  Isabel Ward

Bizarre maybe. Or perhaps refreshing. Why shoot the dissenting messenger?

AJ Mac
AJ Mac
1 year ago
Reply to  Isabel Ward

Bizarre maybe. Or perhaps refreshing. Why shoot the dissenting messenger?

Isabel Ward
Isabel Ward
1 year ago

This is bizarre coming from someone on theJP whose editor continuously pushes his editorial and articles with the agenda that democracy is under threat. Indeed many of its articles imply there could be civil war.

Josef O
Josef O
1 year ago

The issues at stake in the current debate in Israel are very complicated and require serious knowledge and pragmatism. After 2000 years to find a formula which defines the Jewish religion with the needs of a modern state is extremely difficult. To do so while many unsolved matters the Israelis still have with the surrounding countries (some of them still enemies) is a daunting job. Let us follow patiently the developments hoping a compromise can be found.

Josef O
Josef O
1 year ago

The issues at stake in the current debate in Israel are very complicated and require serious knowledge and pragmatism. After 2000 years to find a formula which defines the Jewish religion with the needs of a modern state is extremely difficult. To do so while many unsolved matters the Israelis still have with the surrounding countries (some of them still enemies) is a daunting job. Let us follow patiently the developments hoping a compromise can be found.

Joel Morgenstern
Joel Morgenstern
1 year ago

An exceptionally poorly reasoned and fundamentally flawed article about the governmental revolution that is now in the making in Israel. “Reports of the demise of Israeli democracy are, however, greatly exaggerated. The proposed changes relate to the balance of power between the judiciary, the legislative and the executive branches of government . . . .” Correct, but the controversial legislation that is being fast tracked now terminates any balance at all. The legislation gives a simple majority in the parliament complete control over the selection of judges appointed to the Supreme Court and furthermore gives the same simple majority the power to override ANY decision of the Supreme Court should it not like the decisions of its hand picked judges! Please remember that in Israel there is no truly separate, independent executive branch. The prime minister never stands for a popular vote and serves entirely at the pleasure of the parliament. A simple majority throws the prime minister out.  If this plan passes there are no checks and no balances. None. A bare majority of the parliament controls all branches of government.  This is not democracy, although I am sure that Putin, Erdogan and Orban would disagree. The resistance to this putsch is not in any manner simply partisan politics at work. I think Lahav Harkov needs to retake civics 101.

Last edited 1 year ago by Joel Morgenstern
Joel Morgenstern
Joel Morgenstern
1 year ago

An exceptionally poorly reasoned and fundamentally flawed article about the governmental revolution that is now in the making in Israel. “Reports of the demise of Israeli democracy are, however, greatly exaggerated. The proposed changes relate to the balance of power between the judiciary, the legislative and the executive branches of government . . . .” Correct, but the controversial legislation that is being fast tracked now terminates any balance at all. The legislation gives a simple majority in the parliament complete control over the selection of judges appointed to the Supreme Court and furthermore gives the same simple majority the power to override ANY decision of the Supreme Court should it not like the decisions of its hand picked judges! Please remember that in Israel there is no truly separate, independent executive branch. The prime minister never stands for a popular vote and serves entirely at the pleasure of the parliament. A simple majority throws the prime minister out.  If this plan passes there are no checks and no balances. None. A bare majority of the parliament controls all branches of government.  This is not democracy, although I am sure that Putin, Erdogan and Orban would disagree. The resistance to this putsch is not in any manner simply partisan politics at work. I think Lahav Harkov needs to retake civics 101.

Last edited 1 year ago by Joel Morgenstern
Frank McCusker
Frank McCusker
1 year ago

Duplicitous article.
One proposal would allow the Knesset to override Supreme Court rulings with a bare majority.
You consider that to be compatible with democracy?
It’s only a few cultural clicks away from government by fiat.

Jonathan Pensak
Jonathan Pensak
1 year ago
Reply to  Frank McCusker

It’s more democratic than Supreme Court rulings which are based on nothing other than the mostly (ethnically and ideologically) homogeneous, unelected judges finding some government action “unreasonable” based on no objective standard.

Daniel Some
Daniel Some
1 year ago
Reply to  Frank McCusker

It’s a proposal. Those politicians who have a better suggestion (not hard to come up with one) should bring it up in the committee or in the Knesset plenum and convince their peers. That’s democracy, not taking over the streets or refusing to protect the country or pulling out your money which was made thanks to everything that Israel provided the “founders” .

Samir Iker
Samir Iker
1 year ago
Reply to  Frank McCusker

“Supreme Court justices were mostly self-selecting in the years after Barak, so they almost exclusively chose new members of the court who agreed with them”
Democracy isn’t unelected, “liberal ” judges overturning the will of people expressed by an elected parliament, even if it’s by a “bare majority”

Jonathan Pensak
Jonathan Pensak
1 year ago
Reply to  Frank McCusker

It’s more democratic than Supreme Court rulings which are based on nothing other than the mostly (ethnically and ideologically) homogeneous, unelected judges finding some government action “unreasonable” based on no objective standard.

Daniel Some
Daniel Some
1 year ago
Reply to  Frank McCusker

It’s a proposal. Those politicians who have a better suggestion (not hard to come up with one) should bring it up in the committee or in the Knesset plenum and convince their peers. That’s democracy, not taking over the streets or refusing to protect the country or pulling out your money which was made thanks to everything that Israel provided the “founders” .

Samir Iker
Samir Iker
1 year ago
Reply to  Frank McCusker

“Supreme Court justices were mostly self-selecting in the years after Barak, so they almost exclusively chose new members of the court who agreed with them”
Democracy isn’t unelected, “liberal ” judges overturning the will of people expressed by an elected parliament, even if it’s by a “bare majority”

Frank McCusker
Frank McCusker
1 year ago

Duplicitous article.
One proposal would allow the Knesset to override Supreme Court rulings with a bare majority.
You consider that to be compatible with democracy?
It’s only a few cultural clicks away from government by fiat.

Mashie Niblick
Mashie Niblick
1 year ago

If the Basic Law is not a constitution, what is it?
Of course, it’s a constitution.

Daniel Some
Daniel Some
1 year ago
Reply to  Mashie Niblick

There is no basis in Israeli law for constitutional status for so-called “Basic Laws”. How can a law passed by a 32-21 vote, out of 120 MKs, be considered of constitutional stature? They weren’t even paying attention.

We first need a law that establishes the status of a Basic Law as being superior to other laws, and a special procedure to approve one including supermajority of the plenum and perhaps even a national referendum. This would relegate all current Basic Laws to regular law status and we would need to relegislate them all.

Another great article by Lahav, thank you. Perhaps a better title for it would note that our democracy is not currently in peril but our country most certainly is, the result of radicalization and polarization that have been building for years. Democracy becomes more and more fragile as radicalization increases. The real danger to democracy in Israel is not the legal reforms themselves but all those who refuse to engage democratically with the other side – left and right – and attempt to hold hostage the essential national intuitions like the IDF, the economy and the Knesset to get their way.

Daniel Some
Daniel Some
1 year ago
Reply to  Mashie Niblick

There is no basis in Israeli law for constitutional status for so-called “Basic Laws”. How can a law passed by a 32-21 vote, out of 120 MKs, be considered of constitutional stature? They weren’t even paying attention.

We first need a law that establishes the status of a Basic Law as being superior to other laws, and a special procedure to approve one including supermajority of the plenum and perhaps even a national referendum. This would relegate all current Basic Laws to regular law status and we would need to relegislate them all.

Another great article by Lahav, thank you. Perhaps a better title for it would note that our democracy is not currently in peril but our country most certainly is, the result of radicalization and polarization that have been building for years. Democracy becomes more and more fragile as radicalization increases. The real danger to democracy in Israel is not the legal reforms themselves but all those who refuse to engage democratically with the other side – left and right – and attempt to hold hostage the essential national intuitions like the IDF, the economy and the Knesset to get their way.

Mashie Niblick
Mashie Niblick
1 year ago

If the Basic Law is not a constitution, what is it?
Of course, it’s a constitution.

John Freeman
John Freeman
1 year ago

Meretz was wiped out at the last election. The Labour party, once regarded as the natural government of Israel, hangs by a thread with only four MKs left. That is all that is left of the Left. Everything else is either right of centre, right wing, far-right wing or fascist. In many ways the Court was the only liberal institution left. Like it or not, it was an important moderating influence.
It will not be a popular opinion here but there needs to be a balance in any democracy. The other uncomfortable fact is that for decades the glue that kept Israel together was the external Arab enemy. Apart from Syria, which has no interest in another war, the Arab states now range from diffident to positively friendly in their attitudes towards Israel. It was probably inevitable then that internal divisions would spring to the fore.
The Israeli Arab towns resemble the old Italian, Irish and Jewish ghettoes in the US before the WASPs allowed them to enter the professional class – full of organised criminal elements and riven with guns. The police are afraid to enter and so the Arab mafia rules unchecked. Its ironic that Arab criminal gangs succeeded in gaining control of territory where Palestinian national movements failed. The risks of having a disaffected minority armed to the teeth and shut out of the wider economy are obvious.
The religious issue looks insoluble. It took centuries and protracted wars for the Christian churches to accept the supremacy of the State. It turns out that Jewish religious clerics never absorbed this concensus, but were simply kept in check by dint of the fact that they were a minority religion. Its difficult to see a way forward in that respect, particularly given demographic trends amongst the religious. Israel’s population is already aging. The fact that much of its population draws a stipend to sit at home and read the bible compounds the problem.

John Freeman
John Freeman
1 year ago

Meretz was wiped out at the last election. The Labour party, once regarded as the natural government of Israel, hangs by a thread with only four MKs left. That is all that is left of the Left. Everything else is either right of centre, right wing, far-right wing or fascist. In many ways the Court was the only liberal institution left. Like it or not, it was an important moderating influence.
It will not be a popular opinion here but there needs to be a balance in any democracy. The other uncomfortable fact is that for decades the glue that kept Israel together was the external Arab enemy. Apart from Syria, which has no interest in another war, the Arab states now range from diffident to positively friendly in their attitudes towards Israel. It was probably inevitable then that internal divisions would spring to the fore.
The Israeli Arab towns resemble the old Italian, Irish and Jewish ghettoes in the US before the WASPs allowed them to enter the professional class – full of organised criminal elements and riven with guns. The police are afraid to enter and so the Arab mafia rules unchecked. Its ironic that Arab criminal gangs succeeded in gaining control of territory where Palestinian national movements failed. The risks of having a disaffected minority armed to the teeth and shut out of the wider economy are obvious.
The religious issue looks insoluble. It took centuries and protracted wars for the Christian churches to accept the supremacy of the State. It turns out that Jewish religious clerics never absorbed this concensus, but were simply kept in check by dint of the fact that they were a minority religion. Its difficult to see a way forward in that respect, particularly given demographic trends amongst the religious. Israel’s population is already aging. The fact that much of its population draws a stipend to sit at home and read the bible compounds the problem.