The Government’s Total Dominance is a Fantasy

Israel’s Knesset voted on Monday to advance a key bill in the governing coalition’s judicial overhaul package. The bill – a repeal of the Reasonableness cause is an amendment to Israel’s Basic Law on the Judiciary – it states that “those who have the authority to adjudicate the law, including the Supreme Court sitting as the High Court of Justice, will not judge or issue an order against the cabinet, the prime minister, a minister or any other elected official as determined by law, regarding the reasonableness of their decision.”

Stripping away the standard of reasonableness constitutes a significant leap towards granting boundless power to the government, particularly in matters concerning parliamentary immunity. Passing this legislation as it stands is a deliberate move to shield Knesset decisions from oversight, leaving citizens vulnerable to the whims of the ruling regime. This bill also eliminates administrative review of elected officials, which comes after the court’s January ruling stating that Arye Deri, a former minister, and leader of the Shas party would not be able to serve in the cabinet because of his three criminal convictions and subsequent suspended sentence.

Yet, any attempt to highlight this is often met with the all-too-familiar chorus from parliamentarians: “This is the will of the people.”

The notion that judicial review undermines the “will of the people” is nothing but misguided populism, even when ministerial decisions are the subject of review. Merely because a minister makes a particular decision does not automatically imply that they are reflecting the “will of the people” or even the “will of the majority” (and in a democracy worthy of the name, there are restrictions on majority rule). The true embodiment of the “will of the people” and their sovereignty lies within the framework of the law. Therefore, administrative review serves as a mechanism to ensure governmental compliance with the law, preventing the abuse of authority and guaranteeing that decisions are made without conflicts of interest or undue external influences.

In other words, the democratic principle that grants power to the government with the explicit purpose of utilizing it for the welfare of its citizens inherently justifies external scrutiny of the factors employed in exercising this power.

The roots of the government’s extensive judicial overhaul package can be traced back to three potent forces within Israeli politics. All of these forces, which now exert significant influence, have shaped the scope and direction of the reform efforts undertaken by the government and each of them demonstrates differing levels of apathy or animosity towards Israeli democracy. The first, Prime Minister Benjamin Netanyahu and Shas leader Aryeh Deri, along with their allies, seek to undermine the judiciary due to their personal legal battles. The second, the Haredi parties advocate for a weakened judiciary to sustain social distortions arising from practices like military draft evasion, labor nonparticipation, and welfare dependency. The third, the Religious Zionist faction, representing the settler movement’s assault on the judiciary, is rooted in its reliance on fundamentally undemocratic terms for the project’s survival and their intended annexation of the West Bank.

Accompanying these three forces is a steady drumbeat of populist rhetoric, intolerance and a willingness to abandon democratic norms which is, of course, what makes the rise of these parliamentarians so dangerous. Some of them have no interest in living tolerantly alongside people with different views and lifestyles and are committed to using the power of the state to drive those people and principles out of public life. They have no desire to abide by the rule of law because that requires the very tolerance they cannot abide by. One only needs to look at settler extremists burning down Palestinian villages to understand the result. Many Israelis can foresee the kind of society that the reforms are really just the first step in trying to create.

Meaning that, if on the political level, the government’s desire for total dominance symbolizes the continuation of the push to ram through a legislative package that would weaken the courts, change the rules of the democratic game and break the established norms and institutions of Israel’s existing order. Then on the public level, the judicial overhaul reflects the most far-right and religious government in the country’s history and its tendency to favor extreme factions on the fringes of the coalition, not only at the expense of mainstream Israeli public opinion, but to achieve a much larger political program of extending Israeli sovereignty over the West Bank.

The current government is not disguising its intentions to expand the settlement enterprise in the territories. Earlier in the year they repealed the disengagement law, and have since made plans for settlement construction and the legalization of illegal outposts at a high rate. Some government members have been writing openly about this goal for nearly a decade. Chief among them is Finance Minister Bezalel Smotrich who has been handed broad authority over civilian issues in the West Bank, enabling him to deepen Israel’s presence in the territories, increase settlement construction and thwart Palestinian development. The authorities being transferred to Smotrich — following an extended internal coalition battle over the issue — include enforcement powers over illegal construction, authority over planning and construction for settlements and land allocation matters.

In his piece published in 2017 titled Israel’s Decisive Plan , Smotrich stated “that there is room for only one expression of national self-determination west of the Jordan River: that of the Jewish nation. Subsequently, an Arab State actualizing Arab national aspirations cannot emerge within the same territory.”

He continues writing that “this process will make it clear to all that the reality in Judea and Samaria [West Bank] is irreversible…….and that the Arab dream of a state is no longer viable. Victory by settlement will imprint the understanding upon the consciousness of the Arabs and the world that an Arab state will never arise in this land.”

Meanwhile, MK Itamar Ben Gvir has openly encouraged violence by extremist settlers against Palestinian civilians, calling them “sweet boys”, all while condemning the IDF for referring to the incidents as “nationalist terrorism”. In truth, it’s impossible to separate the attack on the judiciary and the anti-democratic motives within Israel from these factions’ desire to expand Israeli sovereignty over the territories. For without a weakened Court, the above goal could not be realized.

Political Theorist Dr Shany Mor wrote in his article titled Israel is a Democracy on the Brink that he, “ thinks everyone knows this, even if it’s easier to rile up passions about the prime minister’s corruption trial. You don’t get hundreds of thousands of mostly comfortable middle-class people out on the street week after week protesting a change in the procedure for appointing judges. You don’t get people out protesting any policy change at all if they believe they can reverse it in the next election. What has brought out the thousands and the hundreds of thousands is the fear that they won’t get this chance.”

The public protest and its high rate of participation, with hundreds of thousands of Israelis in the streets across the country on a weekly basis, generates significant legitimacy for opposition to the government’s legislative moves. Some 21 percent of all Israelis have taken part in the protests, according to figures collected by the Israel Democratic Institute. That’s the equivalent of 70 million Americans protesting.

For several months now, government actions have not enjoyed full democratic legitimacy. As current polls show, the protests do not only include left-wing voters; a significant portion of Likud (the ruling party) voters oppose the government’s moves. Polls by the Israel Democracy Institute show, for example, that less than a third of voters support the proposed amendment that would block judges from using “reasonableness” to strike down decisions made by lawmakers. Among Likud voters, less than half support the proposal – just 45 percent.

For several months now, government actions have not enjoyed full democratic legitimacy. As current polls show, the protests do not only include left-wing voters; a significant portion of Likud (the ruling party) voters oppose the government’s moves. 

Notable figures, such as Benny Begin, the son of Likud’s iconic founder and former PM Menachem Begin, expressed “that there was nothing left of his father’s vision in the current party”. Yoav Horowitz, former Chief of Staff for Prime Minister Netanyahu and Director General of the Prime Minister’s Office, attended the Tel Aviv protests, and former IDF Chief of Staff and former Defense Minister Moshe “Bogie” Ya’alon was seen protesting outside the home of current Defense Minister Yoav Galant.

In this sense, the Kaplan Street demonstrators represent a powerful civil demand by the main avenue of the public to hold the government to the principles etched in the Zionist doctrine – the Declaration of Independence – which above all represents the Jewish democracy they fear will be lost.

But the effects of the overhaul are not only issues to worry about for a possible nondemocratic future.

There are consequences for the here and now. A recent report by The Marker and Haaretz, found that as a result of the judicial overhaul, Israel has incurred a significant loss of NIS 150 billion since January. The Tel Aviv stock market is stagnant in performance with 0 increases, contrasting with Wall Street’s 15% growth, the shekel is weakening, and cost of living and inflation are increasing. 80% of new Israeli start-ups chose to register their companies overseas rather than in Israel, and foreign investments have experienced a drastic 90% decline this year. Violence in the territories increases at boiling temperatures, nothing has changed on the front of Iran and on a possible normalization deal between Saudi Arabia and Israel, Biden recently said, “we’re a long way from there.” The second Negev Forum, an outcome of the Abraham Accords, where foreign ministers from Israel, the UAE, Bahrain, Morocco, Egypt and the US gather to discuss regional issues, develop solutions and expand the normalization process was canceled due to the significant expansion of settlements in the West Bank.

Eighty percent of new Israeli start-ups chose to register their companies overseas rather than in Israel, and foreign investments have experienced a drastic 90% decline this year.

Preparations for the reasonableness standard bill’s final Knesset readings continued on Wednesday morning at the Constitution, Law and Justice Committee, regardless of public opinion and the cross-country anti-judicial reform protests that erupted in opposition to the legislation on Tuesday.

This is precisely where the real problem with the government lies: their desire to achieve total domination is a fantasy. There’s never going to be a point where you’ve slain all of your “enemies”. The massive protests show Israelis understand democracies die gradually, the protestors have made clear that no matter how long it takes, they are committed to prevent Israel’s democratic backsliding. The government’s “enemy” is not the Left, the protestors or the opposition, their only real enemy is their inability to reckon with this reality.

By now the political opposition who are garnering increased support among the public should see the protests and the “winds of change” among Israeli civil society, especially within the voting base of the government, as motivation to lay the groundwork for its political program moving forward. Doing so first requires defeating the judicial reforms.

Samuel Hyde is a writer/researcher based in Tel Aviv, Israel. He is the editor of the book “We Should All Be Zionists” by Dr. Einat Wilf and is currently co-writing a second book with Wilf titled “Political Intelligence.”