Make no mistake: Israeli democracy is under siege

The judicial reform law being pushed by Netanyahu's right-wing government is a dangerous first step towards illiberalism.

The decline of democracy globally over the past two decades has not been fueled primarily by wars of conquest or military coups (though these have occurred), but rather by the popular election of leaders, backed by political parties, that lawfully erode democratic institutions through majority rule. These majorities believe their values are so vitally important to advance that all obstacles to their goals must be removed – even at the expense of a nation’s democratic character. Get a leader in place that is willing to push this agenda and democracy is lost. This has happened in Hungary, Poland, and Turkey. This phenomenon may well be unfolding in Israel today.

Israel’s democracy is as old as the state itself. Its Declaration of Independence, issued moments before the end of the British Mandate in Palestine in 1948, provides that Israel “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace …; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture … and it will be faithful to the principles of the Charter of the United Nations.” Since then -- despite the series of existential wars it has fought with its Arab neighbors, the multiple security challenges it has faced, and the on-going conflict with the Palestinian people -- Israel has remained a vibrant, albeit fractious and contentious, democracy. Israel has been ranked as a “Free” country by Freedom House since it began issuing country scores in 1973. It currently has a score of 77 out of 100, putting it towards the bottom of the 84 “Free” countries in the world.

Israel’s democracy is in jeopardy, however, because a toxic brew of religious ultra-nationalism has taken hold of a substantial block of Israeli voters who prioritize their religious and political goals over the maintenance of Israel’s democratic institutions. In the 2022 parliamentary election, ultra-orthodox religious parties won 14% of the vote and a coalition of far-right ultra-nationalists won another 11%, giving them 32 seats in Israel’s 120-member legislature. These seats gave them substantial power and influence in Prime Minister Benjamin Netanyahu’s governing coalition, which they are determined to use to advance their two highest priorities: 1) moving towards full Israeli sovereignty over the West Bank despite the opposition of the 2.7 million Palestinians who live there and 2) protecting the interests of the deeply orthodox religious community known as the Haredi.

The biggest obstacle to pursing this agenda is the Israeli judiciary, which for decades has played a leading role in ensuring that the Israeli government complies with both international human rights law and the fundamental principles of fairness, equality and democracy expressed in Israel’s Declaration of Independence and known in Israel as its “Basic Law.”  The Israeli judiciary has asserted itself in virtually all affairs of state. It has issued decisions that have limited the use of drone strikes on suspected terrorist in the West Bank and Gaza to ensure their consistency with international humanitarian law, overturned settlement construction plans in in the West Bank that violated Palestinian property rights, and prohibited an orthodox community from constructing a barrier separating men and women on public streets in order to protect women’s rights.

Thus, it came as no surprise that right out of the gate when the new right-wing government was seated in January, its first order of major business was a judicial overhaul proposal. The proposed reforms would alter the way judges to the Israeli Supreme Court are selected, allow the legislature to “override” any judicial decision striking down a law passed by the legislature, and eliminate the power of the judiciary to void government actions that are determined to be “unreasonable.” Together, these reforms would neuter the power of the courts to restrain the government’s power in any way. In an American context, this law would be the equivalent of overturning Marbury v. Madison, ending Senate confirmation of judicial nominees, and repealing the important federal statute that enables the judiciary to invalidate government actions that are found to be “arbitrary, capricious, or contrary to law.”

The proposal was immediately controversial because of the sweeping impact it could have on Israeli domestic society. While the right-wing ultra-religious nationalists have gained substantial political power, many of their views are deeply unpopular. About half of Israel’s Jews identify themselves as “secular” and 75% as either secular or “traditional.” They have no interest in the Haredi’s demands for greater gender segregation, repeal of anti-discrimination laws, and anti-LGBTQ+ measures. They also oppose continued exemptions for the Haredi dfrom mandatory military service and welfare benefits for Haredi men who study instead of entering the workforce.

It is also my sense -- though I cannot find any direct evidence to support this claim -- that most Israelis would prefer that the right-wing’s aggressive approach to addressing security issues in the occupied territories to be subject to judicial supervision. Indeed, the public is giving the hard-line government very low marks on its performance addressing Palestinian terrorism, with 58% assessing the effort as poor or very poor, and only 18% giving the government a good or excellent grade. Even Netanyahu is not willing to embrace the radical approach of his National Security Minister Itimar Ben-Gvir for handling West Bank security. Netanyahu has reportedly frozen Ben-Gvir out of national security cabinet meetings, refused to implement his proposal to create an internal police force under Ben-Gvir’s command, and slow-walked legislation to impose the death penalty for “nationalistically motivated murder” of Israeli citizens. (Notably, this Ben-Gvir proposal would not apply to the dramatically increasing number of murders being committed by Jewish settlers against Palestinians).  

As the right-wing government’s judicial reform package progressed through the legislative process in March, large-scale domestic and international opposition arose, bringing hundreds of thousands of Israelis into the streets on a weekly basis and prompting a rebuke from President Biden who urged Netanyahu to “walk away” from the plan. The threat the reform bill posed to the foundation of Israeli democracy was perceived to be so severe that Israel’s currency lost 5% of its value in a month, tech investors withheld billions in venture capital, and many Israel reservists said they would stop showing up for military duty. With the country in revolt, Netanyahu called a pause to the reform legislation at the end of March and pledged to pursue bipartisan negotiations. But those efforts broke down last week and the government reintroduced a part of its reform agenda – preventing “reasonableness review” by the judiciary – in legislation that is apparently even broader and more restraining on the judiciary on this point than the earlier proposal. With protestors back on the street, reservists again threatening to stay home, and widespread speculation that judicial reform was reintroduced to keep the right-wing coalition together while Netanyahu was negotiating a favorable plea deal in his corruption trial, Israeli democracy is looking shaky yet again.

Now, one could argue that the judicial reform controversy is not a crisis for Israeli democracy because if the measure is so unpopular those advancing it will simply be voted out of office at the next election. But this argument ignores the way that democracies die. Once the Israeli right-wing shows it can cripple one institution that is frustrating its agenda, it will do so again and again. If judicial review of the “reasonableness” of government actions is eliminated, you can be sure the other parts of the judicial reform package that have been sidelined for now will soon follow. And if those in power seems to be losing public support, they will convince themselves that other aspects of Israel’s democracy need to be suppressed to serve the greater good of keeping themselves in office. Restrictions on the free press, laws aimed at weakening political parties and “electoral reforms” designed to suppress opposition turnout are likely to follow. These laws would all be struck down by the courts in a healthy democracy – but the Israeli judiciary would have already been rendered powerless to do anything about them. The result: an electoral democracy in name only.

This is exactly what happened in Hungary where authoritarian Viktor Orbán is now serving his fourth consecutive term. Hungary had near perfect Freedom House scores as late as 2011. It is now only ranked as “Partially Free.”

The protestors are right – “judicial reform” is a genuine attack on the future of Israel’s democracy. There is much at stake in the coming weeks.