Netanyahu’s assault on democracy hits a speed bump

Netanyahu’s assault on democracy hits a speed bump

A rally in Englewood.
A rally in Englewood.

From Saturday evening, March 25, through Monday evening, March 27, Israelis’ desperate struggle to preserve their democracy reached an unprecedented new level. The leaderless popular revolt against the dangerous power grab proposed by Benyamin Netanyahu and his hard right coalition rocked the nation. This new government coalition, formed with the slimmest of majorities, is only three months old and has announced plans not simply to revise the judicial system but to cripple it, removing the teeth from the watchdog that protects Israel’s democracy — the Supreme Court.

Hundreds of thousands of Israelis were in the street demanding an end to Netanyahu’s judicial coup.

Workers walked off their jobs, departing flights were canceled, and the port of Haifa shut down. Air Force pilots and members of the highly esteemed computer divisions of the Israeli Army announced their decision to refuse to serve in their reserve units.  Even McDonalds shuttered its shops. The pressure compelled parts of Netanyahu’s coalition to waver. The defense minister, Yoav Gallant, recognized the security threat and declared his official opinion that the juggernaut of anti-judicial legislation had to be stopped.  Netanyahu responded to Gallant’s statement by removing him from office. But by the end of Monday, Netanyahu was forced to hit the pause button. But only for a short time. All his programs remain ready for final enactment as soon as the Passover break is over.

And while many eyes were focused on the drama in Israel, few understood that the plans to subvert Israel’s democracy were largely conceived and written right here in the United States.

Before we examine all of this, first, a little background.

Israel is governed through a parliamentary system. Voters elect party representatives, and a government is formed through a coalition that manages to muster a majority. That majority chooses a prime minister and the government.

There is no separation of powers between the legislature and the executive. The legislature is unicameral, so there is no check on the legislation by a second body.

Unlike the United States and many other democracies, Israel has no constitution to define and limit powers. The only check to the power of any administration in Israel is the enforcement of previous law through independent courts. In Israel, the independence of the courts, unfettered by politicians, is assured by a selection system that includes political representatives but subordinates their power. Judges are appointed through a selection committee of nine members: three Supreme Court members, one of whom is the president of the Supreme Court; two government ministers, of whom one as the minister of justice presides over the selection committee; two Knesset members, one of whom often, but not always, is a member of the opposition; and two members of the Israeli Bar Association. In this construction, the politicians are always in the minority while the majority are from the legal profession. To preserve balance, Supreme Court judges must be appointed by a majority of seven. In this way, representatives of the Knesset majority could have a blocking vote on the most important judicial appointments.

While Israel does not have a constitution, it does have Basic Laws, which, in place of a constitution, define governmental procedures and authority and place certain limits on that authority. The passage of two Basic Laws in 1992 were interpreted by the Supreme Court as giving the court the power of judicial review. This allows the Court to nullify acts of the Knesset it deems as violating existing law. Part of the parameters for nullifying a law is what has been called the reasonableness test. The test examines the law within the parameters of expected results and determines if those results are reasonable according to the panel of Supreme Court judges.

Additionally, in Israel, the attorney general places officers within the various government departments; those officers are responsible for ensuring that the actions of those government agencies fall within legal boundaries. By being answerable to the attorney general, these legal advisers are independent of the ministers they advise.

The Supreme Court and Basic Laws are the checks in Israel’s system of governance, and through the attorney general, rule of law is maintained in the ministries.

Each one of these barriers are the targets of the new administration. By politicizing the appointment of judges, removing the legal advisers from the authority of the attorney general, and, for good measure, allowing the Knesset to override any Supreme Court ruling, this coalition, led by a prime minister under indictment and bolstered by thugs and hooligans, will be able to make its dreams come true, unfettered by law and some pesky Supreme Court.

Yair Levin, the deputy prime minister and minister of justice, has proposed in the Knesset to alter the composition of the judicial selection committee, increasing the size to 11 members. Three would be government ministers and three would be Knesset committee chairs;all of them would be members of the governing coalition. Three would be judges, one of whom would be the president of the Supreme Court. Two would be members of the public, and at least one of them would be a lawyer. They would be selected by the justice minister.

This new selection committee make-up is designed to be controlled overwhelmingly by the governing coalition. This would be particularly true as the proposal includes a change in the way the president of the Supreme Court is chosen. Now, the president is decided by seniority. Levin’s proposal gives the governing coalition the unilateral power to appoint the president. The president of the Supreme Court has important powers as the chief administrator of Israel’s court system.

Not only would Levin’s proposal completely politicize the selection of judges, including Supreme Court judges, it would politicize the operations of the entire court system. This newly stacked committee also would have enough votes to meet the existing threshold to remove judges, for any or no reason, allowing the court system to be completely packed by the governing coalition, or at minimum, would subject the judges to the coercive pressure of the threat of removal.

The only point to expanding the committee is to dilute the existing thresholds and put them within the control of the sitting government.

Levin’s proposals also would eliminate the reasonableness test and place other limits on the judicial review authority of the Supreme Court. It would place the legal advisers to Knesset ministers under the control of the respective ministers they advise instead of the Attorney General, undercutting their authority. The icing on this cake: Levin’s proposals would allow the Knesset, by a simple 61-vote majority, to overrule any Supreme Court decision.

The timing of the proposal is no accident. The new administration wants to advance its agenda quickly and remove any barriers the current court system might impose because there is a mandatory retirement age for Supreme Court members and two of those members, including the president of the court, will be compelled to step down this year. A third member will reach retirement age next year.

In the face of growing criticism, Levin’s program has been hustled through committees while opposition Knesset members have been silenced, shouted down, or expelled from committee sessions.

Clearly the implications are very serious, and the results are all too visible wherever programs like this have been installed.

There is a consistent pattern around the world that illiberal democracies apply to take control of the judiciary and then use it as a tool to suppress criticism and debate. That allows the government to eliminate political opponents and opposition parties and to suppress the votes of target populations to ensure that existing power blocs remain unchallenged.

In India and Turkey, trials before judicial panels appointed by a compromised judiciary systems have been abused to arrest and imprison opposition candidates and prevent them from running in elections. In India, courts have permitted the wholesale removal of citizenship rights from targeted Muslim populations. Laws are crafted or abused to target critical journalists and independent media.

These actions have been seen and their lessons learned. Once Levin’s proposals are enacted into law, there will be nothing to prevent the same thing happening in Israel. We know that this government already has plans to make it easier for Arab parties and candidates to be excluded from elections. Similar procedures could be used to exclude Jewish candidates and parties that are perceived as threats. There would be nothing to stop the Knesset majority from requiring media outlets to register, subsequently using that act of registration as a vehicle for self-censorship or the elimination of independent voices. Citizenship rules, civil rights, and voting rights could be changed completely. This is particularly important as the new administration moves toward annexing the West Bank.

The Supreme Court has been crucial in protecting women’s rights, particularly from enforced segregation and separation from public life as pressed by ultra-Orthodox parties. With the court under political control, it is unlikely to continue to serve as a shield against governing charedi party efforts to compel segregation. In the unlikely event that the court continued its protection, the majority coalition could overrule it in the Knesset.

Among the governing coalition today are parties that are openly anti-gay. Legislation discriminating against gays and lesbians or criminalizing them now are blocked by Basic Law and the courts. Those barriers would be swept away by Levin’s proposals. Existing protections for Israel’s non-Orthodox Jewish streams, as limited as they are, could be removed as well.

An independent judiciary is a vital bulwark against corruption. Here is yet another reason the new administration has targeted it. This year, the court blocked a member of the governing coalition, Aryeh Deri, from taking a ministerial post in the government. Deri, one of the founding members of the Shas party, was convicted of bribery, fraud, and breach of trust in 1999. Returning to politics in 2012, he was pressured to resign from the Knesset due to his violations of tax laws.  As part of the Shas party list he returned to the Knesset in the December 2022 elections. Levin’s proposals would sweep away obstacles to Deri’s control of a ministry and its budget.

Netanyahu himself is the subject of a long, drawn-out corruption trial. As part of the coalition’s judicial agenda, a law already has been passed to restrict the attorney general’s ability to remove the prime minister from office.  The attorney general has just filed a suit against the new law, saying it represents a violation of an existing agreement with Netanyahu that permitted him to serve while under indictment.

The proponents of these changes to the judiciary claim that none of the charges of corruption, embezzlement, and breach of trust by sitting — or in Deri’s case recently removed — ministers have anything at all to do with their plans for the court. But sometimes, if it looks like a duck and sounds like a duck, it must be a duck.

For these reasons, protesters against Levin’s Knesset proposals do not speak of them, as the press often does, as “judicial reforms.” They call them bluntly and explicitly for what they are: a coup.

But where did the blueprints for this coup come from?

The plans for the assault on Israel’s democracy were created in the United States by a right-wing think tank, the Kohelet Policy Forum, formed and operated by Moshe Koppel, an American immigrant to Israel. The forum is reported to be funded by Arthur Dantchik, an extremely wealthy resident of  Queens. Their involvement was uncovered and reported in an Israeli newspaper, Haaretz, and the Democratic Bloc, a research group whose director, Ran Cohen, is an immigrant born in Iraq and a former member of Knesset from the Meretz party. Kohelet, which has a Jerusalem office, regularly advises members of the Netanyahu administration and the governing Knesset coalition on a range of topics, occasionally participating actively in meetings and negotiations.

Moshe Koppel was in Englewood on March 25; congregants of the East Hill Synagogue had invited him to speak that Shabbat. He was met by a large contingent of Israelis and Americans, all lovers of Israel and defenders of democracy, who stood out in the rain with Israeli flags. They shouted in Hebrew and English “Shame on Kohelet — Bushah” and they sang Hatikvah. They were joining their voices with protesters in Israel demonstrating against the plan cooked up by Kohelet and Koppel; they were joining their voices with Israelis across a wide swath of political opinion who are coming out onto the streets to defend a democratic future for the state of Israel and all its inhabitants.

While the judicial coup attempt is very much a partisan affair, the streets of Israel are filled with protesters who run the gamut. They range across party lines; they include Likud voters, observant Jews, and even West Bank settlers, as well as supporters of Israel’s opposition parties.  Opponents of the coup include those who link the judicial program with the new government’s annexation plans and its virulent anti-Arab character. One of last week’s protesters came dressed in an elephant costume, with a hand-printed sign reading “Occupation-The Elephant in the Room.”

Suddenly, and for the first time in years, the differences that have divided Israelis, keeping them from talking to those with whom they disagreed, have found at least one common threat that they can coalesce behind. Opinion polls showed that two-thirds of the country oppose the Netanyahu administration’s judicial proposals.

Women’s rights activists dressed in long red cloaks and white bonnets inspired by the “Handmaid’s Tale” have been particularly stunning. Numbering in the hundreds, walking silently in pairs, heads bowed, accompanied by drums, they are readily visible in aerial photos, a bright red line among the scores of thousands of fellow demonstrators. In support, women have begun arriving to protests wearing red shirts. Tens of thousands of women dressed in red shirts joined in a special protest across the country on International Women’s Day.

Weekly protests in Israel began the first weekend in January, shortly after Levin made his program public. A crowd of about 20,000 met at Habima Square in Tel Aviv, with a much smaller group of about 200 meeting in Haifa. The following week, the size of the protest in Tel Aviv had multiplied by four, and there were smaller demonstrations in Jerusalem and Haifa. By the third week, Israeli police estimated that there were 100,000 protesters gathered on Kaplan Street in Tel Aviv, with others not only in Haifa and Jerusalem but also in Beersheva. By February, the weekly demonstrations had spread to smaller towns as well as the main protest sites in the large cities.

By mid-February, the demonstrations featured the active involvement of such public figures as a former military chief of staff, General Moshe Ya’alon. Short-duration strikes involving both workers and business owners began. At one of the demonstrations, an old clip of Netanyahu extolling the importance of a strong and independent judiciary was shown. In March, the size of the protests escalated rapidly. On March 11, more than half a million people protested.

The demonstrations were the visible part of a growing resistance movement. Millions of private discussions are not visible, but suddenly people were talking to each other about public affairs, broaching topics that had long been suppressed by disagreements. The conversations were shaping a building consensus against the administration’s judicial program but were opening dialogues on other topics, too.

There also was a growing revolt among Israeli Defense Force reservists, including reservist volunteers serving in the air force and special services. These took different forms. Some involved polite but firm letters to senior commanders, jointly signed by loyal soldiers. Other communications were more blunt. Reservists told their senior officers they could not serve under a dictatorship. Reservists — particularly volunteers in key service units — stopped showing up.

On Sunday morning, March 26, the day after massive demonstrations across the country in which more than 600,000 protested — fully 7% of the country was out on the streets — Defense Minister Moshe Gallant announced his opposition to the judicial program, warning that the divisions in the country were harming its security preparedness. Shortly after Gallant spoke, Netanyahu announced he was removing him from his post.

Demonstrators who had returned home from protests Saturday night turned back out into the streets in a massive and spontaneous reaction. By Monday morning, there were 100,000 protesters in front of the Knesset where key parts of Levin’s program were hurriedly pushed through for a final vote. Israel’s labor federation, the Histadrut, called a general strike. The owners of businesses promised to pay their striking workers’ wages. In the face of this opposition, parts of Netanyahu’s coalition blinked.  Suddenly they were ready to postpone the program.

But the most extreme elements of Netanyahu’s extremist coalition were too committed to their vision of an Israel unrestrained by the rule of law. Minister Itamar Ben-Gvir, the head of the Kahanist Otzma Yehudit faction, threatened to bring down the government if the judicial program were not brought to a Knesset vote. To appease him, and to remain in power (and perhaps out of jail), in an extremely dangerous move, Netanyahu agreed to create a new armed militia and place it under Ben-Gvir’s direct control. It must be said that Ben-Gvir never served in the Israel Defense Forces. Not because he didn’t want to but because the Army determined he was too violent, too dangerous, to serve. In a country with a universal draft, Ben-Gvir failed to pass muster.

Netanyahu bequeathed this prize upon Ben-Gvir to prevent him from toppling the government. Only then could Netanyahu announce a temporary pause for the judicial overhaul bill package, until after the Pesach holiday.

Israel’s president, Isaac Herzog, whose call for compromise had been refused by the government, again has invited all sides to the table.

Demonstrators left the streets, and Histadrut leaders called off their strike but warned it would be renewed if the legislation were brought to a Knesset vote.

The politicians do not represent the demonstrators. For the protesters, there can be no compromise of Israel’s democratic future. And the best thing we as American Jews can do for Israel is to speak out in their support.

For the future of a Jewish and democratic Israel, we need to ensure that this speed bump turns into a dead end.

Dr. Mark Gold of Teaneck holds a Ph.D. in economics from NYU. He is on the executive board of Partners for Progressive Israel, a member organization of the American Zionist Movement and an affiliate of the World Union of Meretz.

Hiam Simon of Englewood is the past chief operating officer of Ameinu, the leading progressive Zionist membership organization in the United States. He lived in Israel for many years, where he was the dean of students at what is now the Alexander Muss High School, and he served in the IDF as a noncommissioned officer in the artillery.

read more: