The judicial reform and the future of the Jewish State
In the past few weeks, an unprecedented wave of popular protests has swept through Israel. From Tel Aviv to Jerusalem, from Haifa to Eilat, more than 100,000 people have marched through the streets for the eleventh week in a row to oppose the planned judicial reform of Netanyahu’s sixth government. While the protests have remained peaceful so far, the tensions between the country's various social and political factions are on the surge. Benny Gantz, the leader of one of the main opposition parties, has explicitly mentioned the risk of a civil war. At the same time, politicians of the right-wing government party “Otzmah Yehudit”, have called for the arrest of the opposition leaders and demanded stricter police action against the protestors. For now, the government, which has the absolute majority, has not been willing to take a step back, despite the recent mediation attempts by Israeli president Herzog.
The judicial reform, however, is just the last straw that broke the camel’s back. In fact, the divide within Israeli society has been growing during the whole last decade, driven by an increase in political and cultural polarization. Since 2019 five national elections have taken place, and four different governments have been formed. This succession of events is indicative of the deep ideological divide between the right-wing religious coalition and the more secular centre-left wing coalition. Today the ideas that these two factions have on the future of the country and on the nature of the state seem irreconcilable. The Israeli democracy finds itself in front of a crossroads.
The rupture within the Israeli society
Since the finalisation of the new “high speed” railway line between Tel Aviv and Jerusalem in 2018, the two cities are more connected than ever before, and yet, culturally, they have rarely been as far apart as they are now. The difference between these two cities is emblematic of the deep contrast that shapes Israeli society nowadays. The modern and dynamic Tel Aviv is historically the home of the more secular-oriented Israelis and has a long centre-left wing political tradition. The capital Jerusalem instead, which is the political and religious centre of the country, is comprised of a much more conservative and religious population. Moreover, the latter city has a large Arab population as well and is, therefore, the stage of constant tensions between its Jewish and Arab inhabitants. Not only are there tensions between Arab and Jewish Israelis and between the secular and religiously conservative (Orthodox and Ultra-Orthodox) Israelis, but there is also a historical divide between the Ashkenazi Jews of European descent and the so-called Mizrahi Jews from the Middle East. This is without counting the never-ending conflict between Israeli settlers and Palestinians in the West bank, as well as the more recent disputes between the Negev Bedouins and the Israeli government.
The proposed judicial reform, however, mainly divides the Israelis along a political line which is often co-determined by religiosity. The view of the centrist opposition parties differs on many fundamental aspects from the one of the right-wing and religious parties in the government. Especially the attitude towards the settlers in the West Bank and the extent to which religious law should be incorporated into the state legislation are elements of strong disagreement. So far, the Supreme Court could intervene and mediate on these controversial matters by basing itself upon the Israeli basic laws. The weakening of the Supreme Court brought forward in the judicial reform, however, would give the government coalition carte blanche and break the fragile balance on which Israeli society rests since 1948.
The proposed reform
The bill brought forward at the beginning of this year by the Minister of Justice Yariv Levin aims at limiting the power of Israel’s Supreme Court and at changing the mechanisms through which its members are elected. Currently, the Supreme court members are selected by a committee formed by three supreme court judges, two ministers, two deputies and two members of the lawyer’s association. The judicial reform instead proposes that the members of the Supreme Court, as well as all judges, should be directly selected by the government. Moreover, the bill also strongly limits the veto power of the Supreme Court by giving the Knesset (Israeli parliament) the possibility to overrule any veto with a simple majority vote. This is especially problematic given that Israel, similar to the United Kingdom, does not have a written constitution but only a set of basic laws which lie at the basis of the Supreme Court’s decisions. By limiting the judiciary power and the independence of the Supreme Court, the enforcement of the basic laws is at risk. In a country where political, social, as well as religious tensions are the order of the day, the separation of powers is the only guarantee for the proper functioning of democracy and the respect of civil rights. While the government claims that it merely wants to make the legislative process more efficient and increase the sovereignty of the voters, the opposition accuses Netanyahu of turning Israel de facto into an illiberal democracy. The latter concern is shared by many jurists and leading academics in the country, as well as by former politicians and veterans. Many see the reform as Netanyahu’s personal attempt to avoid the corruption trial that he is facing since 2019. The absence of a constitution, however, paves the way for Netanyahu and his government to force through their reform, despite its ambiguous character. Israel’s founding Father, Ben Gurion, certainly underestimated the future divide in Israeli society when in 1948, he decided to postpone the drawing of the Israeli constitution to an indefinite point in the future.
The future of Israel’s democracy
The upcoming months will be key in determining the future of Israel’s democracy, and much of it will depend on the outcome of the judicial reform. The long-term demographic trends suggest that Israeli society will become more religious and conservative in the long run. The Haredi community, which currently represents around 13% of the country’s population, is expected to rise to 24% (one-third of the Jewish population in Israel) by 2050. Current trends also suggest that the political involvement of the Haredi communities will continue to grow, and its temporary ties with the right-wing and revisionist Zionist parties will further solidify in the future. The consequence would be a stronger incorporation of the Chalaka (Jewish law) into Israeli state law and a possible reduction of the civil rights of minority groups in the country. Such controversial changes to the state legislation would be strongly facilitated by the judicial reform and would radically alter the identity of the Israeli state and its democratic institutions.
Given the demographic and political shifts in Israeli society, the role of the Supreme Court as a guarantor of the democratic values seems more important than ever before. Should the judicial reform pass, the path towards an illiberal and strongly religious form of state would be open, as the basic laws alone pose little constraint to the government’s decisions. Overall, the missing anchor of a written constitution leaves the Israeli state at the mercy of the political and religious trends of the time and makes its democracy falter dangerously.