Israel’s Democracy on Pause: A Victory for Popular Protest and Judicial Balance
Dear Friends,
What a week it’s been in Israel. We are in the midst of marking the 75th anniversary of the creation of the State of Israel, and never before has the country seen popular protests of this magnitude. Just today, over 100,000 people have been protesting outside the compound housing the Knesset, Israel’s legislature, in opposition to a highly controversial set of judicial reform proposals being pushed through the levers of government at breakneck speed by the current governing coalition. That’s over 1% of the entire country’s population protesting at just one site, matched by countless others throughout the country. (For context, this percentage would be comparable to over 3.3 million people protesting outside the U.S. Capitol.) In addition to these protests in the streets, representatives from seemingly every sector of Israeli society have announced actions to reinforce the impact—military reservists threatening to not volunteer for reserve duty (in a country bound together by the largely shared burden of military service); university presidents closing down universities; flights canceled at Ben Gurion airport in Tel Aviv because of a labor strike—elements from all across Israeli society seem to have spoken with one singular voice in reaction to the push for these judicial reforms: maspik. Enough.
And, for now, it has worked. Prime Minister Benjamin Netanyahu announced minutes that the current government is delaying its proposed judicial reforms. It is an incredible victory for the power of protest, coalition building, and popular dissent, and should inspire hope in protest movements around the world.
The winding road of the relationship between Israel’s Supreme Court and its Knesset is long and complex, but a brief summary is worthwhile.
Unlike the United States, Israel does not have distinctly separate executive and legislative branches; the legislative branch in Israel—the Knesset—passes all national laws in Israel and elects the Prime Minister (the head of the executive branch; the equivalent of the US President) and approves his or her cabinet. Nor is Israel’s legislative branch bicameral with a separate House and Senate. There is only one body—the Knesset—that passes national legislation.
Nor does Israel have a system comparable to the federal system in the United States, in which significant powers are reserved for the states, while others are left to the federal government; in Israel, regional and local bodies play a much smaller role than US states do according to our federal system.
Voters in Israel vote for the equivalent of one political party for national office, rather than different candidates for House, Senate, and the Presidency. A political party gains, in essence, a proportionate number of seats in the singular legislative body, the Knessent, based on the number of votes that party received, and then a governing body is formed by a coalition of political parties that is able to reach 61 out of 120 seats in the Knesset.
That coalition, therefore, maintains almost complete control of the government in Israel and of all new legislation as long as it is in power—either until the next election four years later or until an internal stalemate requires new elections to be called sooner. During its time in power the coalition has immense legislative and executive latitude, unparalleled in the United States.
The one significant check on this power is Israel’s Supreme Court. Unlike the Justices of the Supreme Court in the United States, Judges of the Supreme Court in Israel are not nominated by the head of the Executive Branch (the President in the United States, the Prime Minister in Israel) and then confirmed by the equivalent of the Senate. In Israel there is an additional layer of separation between the executive and legislative branches on the one hand and the judicial branches on the other. Judges of the Supreme Court in Israel are determined by a nine-member Judicial Selection Committee, composed of three Supreme Court Judges, two representatives of the Israel Bar Association, two cabinet ministers, and two Knesset members (typically one each of the majority and opposition). (Judges of Israel’s Supreme Court may serve until they are 70 years old.)
With no constitution in Israel, the Israeli Supreme Court wields considerable power in protecting the rights of the minority and in determining whether Knesset legislation runs afoul of Israel’s quasi-constitutional Basic Laws, and also generally has broader jurisdiction than the U.S. Supreme Court.
The track record of the Supreme Court has led a right-wing coalition to move aggressively to restrain its power. The Court’s moves to, for example, end military constriction exemptions for haredim (strictly Orthodox Jews) (exemptions which have not been suspended by subsequent governments) and permit settlement dismantlement in the Gaza Strip have engendered passionate opposition to it. Meanwhile, supporters see the Supreme Court as a bulwark protecting the rights of the minority, and providing the only meaningful check against otherwise unrestrained legislative power.
It’s true that there are no easy answers when it comes to establishing a proper balance between duly-elected legislatures passing laws that flow from their mandate of having been elected by a majority of the people, and judicial bodies imposing limits on those legislatures to ensure that fundamental rights of those in the minority are not trampled by those in the majority. The U.S. judicial system is not without its flaws either.
But broad swaths of Israeli society stood in protest against this Israeli government’s moves to wield power over the appointment of Supreme Court Judges and limit the ability of the court to strike down legislation it held was unreasonable. And those protests appear to have proved too much to overcome for the current Israeli government, at least for now. The turning point appears to have been the firing this weekend by Prime Minister Benjamin Netanyahu of Israel’s Defense Minister, Yoav Gallant, a member of Netanyhu’s cabinet and political party, who had spoken out against the judicial reforms for fear popular support against them was undermining Israel’s national defense with, as mentioned above, reservists announcing they would not volunteer for duty, among other societal schisms. That firing appeared to inflame protests to the point that a seemingly unshakeable judicial reform plan has been stopped in its tracks.
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As a rabbi, I feel deeply invested in the story of the Jewish people, and deeply invested in the State of Israel. I feel my spirits rise and fall with its successes and its struggles.
No country, no government made up of fallible human beings—all of us—will be perfect. None will be without its triumphs and tragedies, its singular victories and heartbreaking mistakes. Over the last couple of months in Israel we have seen both. I count today’s developments—that the current governing coalition will pause its radical efforts to transform Israeli democracy, in order to allow for dialogue and deliberation in response to the Israeli peoples’ popular protest—as a major victory. I hope you’ll join me in continuing to follow further developments.
