Hint: Not the side whose arguments are dismantled in this essay
The outrage spread on WhatsApp after Sara Netanyahu was spotted at a high-end hair salon in Tel Aviv. It was a day when hundreds of thousands had taken to the streets, braving stun grenades and water cannons to protest her husband’s efforts to install authoritarianism. Dozens had been arrested, and one man lost an ear.
A tsunami of terrifying liberals streamed to the salon and began to protest outside, shouting “Sara’s getting her hair styled while the country burns.” Three hours later, armed police and cavalry managed to disperse the crowd of several thousand and extract the first lady. First Gentleman Benjamin Netanyahu, her husband, then went on TV to compare the salon siege to a recent pogrom by Jewish settlers who torched a West Bank village and killed a Palestinian man.
A few days later, 37 of 40 reserve pilots in the Air Force’s most elite squadron announced they would boycott reserve duty to protest the prime minister’s planned “reforms,” and a letter signed by every living former commander of the Air Force called on the government to halt its moves. The communications minister, representing a party dedicated to prolonging the right of ultra-Orthodox Jews to dodge the draft, advised the pilots—who have exalted status in Israel—to “go to hell.” It was then reported that no pilots could be found to fly Netanyahu—and his wife, and their vast entourage—to Rome for official meetings; a patchwork solution was found by changing to another kind of plane.
Israel is rarely calm, but this is very much not normal.
Despite growing agitation in the country and abroad, the government is pressing on with its euphemistically termed “judicial reforms.” The discourse bristles with warnings of investor flight, brain drain, mass emigration, civil disobedience, and even civil war.
The bulk of the anger has focused on a so-called “override clause” that would enable a simple majority in the legislature to overturn decisions of the Supreme Court. But also on the table are proposals handing the ruling coalition total control over judicial appointments, imposing limits on the right to strike, and eliminating anti-corruption measures.
Opponents view this as a coup that would mutate Israel into a Putinesque fake democracy in which judges are puppets and government abuses go unchecked. The three-month-old government says it’s facing hysteria by sore losers who cannot accept a rebalancing of the branches of government that is widely desired and long overdue.
Who’s right? Is Israel about to become a Jewish version of Hungary and Turkey, where the government can trample the individual at will? As the country is a wealthy nuclear power that sits on a regional powder keg and provides much of the world’s tech innovation, it’s worth sifting through all the noise.
The government and its defenders say the Supreme Court has been too activist, implying it blocks security moves on the Palestinian front
According to the Israel Democracy Institute, in the 75 years of Israel’s existence the court challenged laws 22 times, mostly on civil rights. Only three rulings had a connection to the occupation. The court did not fundamentally challenge the legality of controlling millions of Palestinians without political rights for over a half-century while building towns for Jews around them.
As chairman of the Foreign Press Association I was involved in several appeals to the Supreme Court to overrule the authorities on various matters involving access; it generally proved a rubber stamp.
It’s true that the court, by its very existence, checked the worst potential abuses. This both served as a valve for Palestinian rage and kept potential international meddlers—like prosecutors from the Hague—off Israel’s back.
The government notes that US presidents select judges, and Canada has an override clause
The (flawed) US system suffers politicized judicial appointments, but it also boasts a constitution that guarantees human, civil, and minority rights, as well as a bicameral legislature that acts as an additional check on abuses and whose members are beholden to voters directly and not to the party leader, as in Israel.
Something similar applies in Canada, where rights are guaranteed and the country’s (quite unique) parliamentary override ability cannot touch them. After Netanyahu invoked the supposed Canada precedent on CNN, former Canadian Justice Minister Irwin Cotler retorted that Canada’s override law was created within the framework of a charter of basic rights and freedoms, which Israel lacks, and that the most fundamental rights are not subject to it. He said Israel’s plan would “eviscerate judicial review” and hand the government “undue power.”
Netanyahu says Israel’s judges “select themselves”
Judges are appointed from shortlists drawn up by a nine-member Judicial Appointments Committee which includes four politicians (three of whom are generally from the ruling coalition), three judges and two members of the bar association. This aims to avoid any one interest group dominating. Under the proposals the government would, in effect, directly appoint the judges. Since in Israel’s system the legislature does not really check the executive, this would give the PM effective control of all three government branches.
Officials say “the people have spoken” in the November election
Beyond the notion that democracy is more than just a tyranny of the majority, the election was essentially a tie in which the current coalition parties received just over 49 percent. About 6 percent of the vote—all from the anti-Netanyahu camp—was thrown away because two anti-Netanyahu parties fell just under the 3.25% threshold for entering parliament. The resulting 64-of-120 majority is hardly an overwhelming mandate for systemic overhaul, especially considering that Netanyahu’s Likud had no platform and he denied radical reforms were planned.
A poll last month found 57 percent of Israelis support the court’s ability to strike down laws deemed undemocratic, while only 15 percent said they “trust” the Knesset. Only the military and the apolitical presidency have historically been trusted more than the courts. Every poll finds only a quarter of Israelis want the plan to forge ahead as is.
Opponents of the plan are derided as elitists “detached” from the people
It’s true that the core of the protest comes from opposition voters who also revile Netanyahu for other reasons, like the West Bank settlements. And Israel’s political divide correlates strongly with education and wealth, creating a class and culture conflict; most religious Jews are on the government’s side whereas the secular largely oppose it.
But opposition is also growing among certain rabbinical and right-wing circles—and it draws in much of the security establishment (a public letter by 400 security figures warned of “damage for generations”) which fears refusal to serve will spread. Angrily opposed are the normally cautious leaders of the world-beating technology sector, which accounts for a sixth of Israel’s economy, a quarter of income tax revenue and half of exports. S&P and Fitch say Israel’s credit rating may be negatively impacted and companies are sending funds abroad citing fears for contract and property rights. Washington and other Israeli allies have also made their displeasure clear.
If the legislation is completed, the Supreme Court will strike them down as violating principles of the Declaration of Independence. The government will probably try to ignore that, placing it in contempt and creating a constitutional crisis whose end no one can foresee.
With the potential calamity so obvious, it’s reasonable to ask who benefits. That’s easy. One group is the far right, seeking unchecked powers to oppress the Palestinians and cement Israeli control in the West Bank; a second is the ultra-Orthodox sector, fearing court interference with special dispensations like the draft; the third is corrupt politicians.
Why would Netanyahu—a sophisticated MIT grad who a few years ago was lavishing praise on the independent judiciary and who is proud of his role in Israel’s economic miracle—want any part of such a thing? That’s easy too: he now finds himself on trial for bribery, fraud, and breach of trust (the latter two being crimes his government’s proposals would eliminate from the statutes).
Sometimes things are complicated – but they can also be as simple (and vulgar) as it seems. Israelis would be wise to grasp what’s going on and edge away from the abyss. Their friends around the world confront the Good Samaritan question: have they any right to intervene? In such an interconnected world, this is certainly an argument that says yes, indeed they do.
After all, politics all over the world are these days so alike—down to the conspiracy theories. Many are now convinced that Sara’s Marie Antoinette moment at the hair salon was a setup all along, to drum up sympathy for the beleaguered royal family. I’m normally a hardcore skeptic, but I can’t rule this one out.
(A version of this story was published in Newsweek)