MINI-DOC: Israel's Crisis Isn't Over

Benjamin Netanyahu is threatening to send Israel spiraling. We explain what’s happening, why, and what can be done.

INTRODUCTION

For the past three months, Israel has been in total crisis, as the largest protests in its history have swept the nation, fueled by slogans decrying new judicial reforms as democracy’s death knell.^[1]

Meanwhile, the conservative coalition behind the reforms, headed by the Goliath of Israeli politics Benjamin Netanyahu, has strenuously insisted the opposite — that these reforms are essential for rescuing democracy from the clutches of a small cadre of judges.^[2]

It was not until just three weeks ago that Netanyahu backed down and paused the reforms, citing concern over a potential civil war.^[3]

Ultimately, the truth of the matter, as with most things in Israel, is complicated.

So, to understand the current crisis, why it’s happening, and where the country can go from here, we need to take a look at Israel’s strange history, its bizarre political system, and its unusual social schisms.

I — STRANGE ORIGINS

Israel’s history is a…complicated one, to say the least. Any deeper dive would require a whole other video, but a quick overview here should be enough for understanding the current crisis.

Our story begins in Europe, where in the late 1800s, many jews began to rally around the idea that they should “return to Zion”—the biblical Jewish homeland in the middle east.^[4] One young Polish Jew was convinced, and in 1906, at 20 years old, he joined the growing immigrant population in the region and adopted the name David Ben-Gurion.^[5]

Over decades of advocacy for a Jewish state, Ben-Gurion rose through the ranks to become the leader of the Zionist cause. And in 1948, after two world wars and a near-total genocide of the Jewish people in Europe, Ben-Gurion got his wish. Amidst complicated disputes and claims, the state of Israel was born.^[6]

This new state would need some rules — who was in charge, how could legislation be passed, and so on. Normally, this means you write a constitution, but Ben-Gurion had different ideas. In a lengthy, passionate speech delivered just a year after Israel’s founding, he concluded, “A constitution isn’t something accepted all over the world…In my opinion it isn’t something we need.”^[7]

Another year later, the Knesset—Israel’s parliament—changed the committee’s assignment. Israel was not ready to craft a constitution just yet. Instead, the committee would spend years gradually writing it in chapters which could be passed as individual pieces of legislation by the Knesset, until every chapter was finished, and a final constitution could be adopted.^[8] For now, Israel would have no constitution.

II — CONSTITUTIONAL REVOLUTION

Without any foundational laws, the Knesset therefore stood as supreme in Israel’s political system, essentially free of checks and balances. The executive depended on its confidence, and while there was a Supreme Court, it had no basis to overturn any legislation made by the Knesset.^[9]

The idea of gradual constitutionalism was that, yes, Israel did need some foundational law, but a step-by-step approach would be safer, given the country’s complex issues and rapidly-changing demographics.^[10]

And, to be fair, this approach basically worked, for a time. Starting in 1958, every few years the Knesset would pass another “Basic Law,” filling out one more chapter of the future constitution.^[11]

But most of the early ones weren’t actually that controversial—it was stuff like “we have a parliament! We have a President! We have a military!”^[12] Which is fine, but in a country with a bunch of religious and ethnic minorities, you might want a bill of rights or explicit limitations on the powers of the government.

Eventually, the Knesset came to terms with this and passed two Basic Laws in 1992, on human dignity and the freedom of occupation, including clauses prohibiting future legislation which unreasonably violated these basic laws.^[13]

By setting some restriction on itself, the Knesset—unwittingly, it seems—invited the court to play referee and take up the power of judicial review to judge whether future legislation broke those rules. It didn’t take long for the Supreme Court’s President, Aharon Barak, to spy the opportunity.

Mere months after the new basic laws were passed, he declared, “the people have given its judges a powerful tool. Now…we shall do the work.”^[14] Just three years later, in a landmark Supreme Court case, Barak and his colleagues formally established judicial review. Barak himself called their sweeping decision Israel’s "constitutional revolution.”^[15]

III — PERSISTENT PROBLEMS

And as the name suggests, this constitutional revolution was nothing short of an earthquake in the Israeli political structure. Where before Israel’s lack of a constitution meant uncontested parliamentary supremacy, it now had a few little pieces of the constitutional jigsaw puzzle, and a judiciary with a permanent marker to draw the rest of the picture.

This might be less of a big deal if the court heard, say, 80 cases a year, similar to the American and Canadian supreme courts. Except…Israel’s justices regularly field over 10,000 cases a year, in part because the court has expanded its own understanding of its jurisdiction to allow anyone to bring a suit against the government directly to the court for any reason.^[16]

Obviously, not everyone is thrilled about this.

Even many people generally supportive of the court and its power of judicial review are critical of the vast scope of the court’s activity and its flimsy legal basis, such as Israeli law professor Eli Salzberger who wrote in a book on the matter in 2007, “The Supreme Court of Israel has emerged as the dominant branch of government…affording an unprecedented degree of intervention in the conduct of other branches.”^[17]

Importantly, Salzberger chalks this up to Israel’s lack of a constitution with defined separation of powers. By not laying down clear rules of the road at the outset of the state, Israel’s founders created an unwitting and bizarre showdown between the court and the Knesset to see who would shoot themself in the foot first.

What has followed since then is a patently unsustainable system of government, and detractors are essentially right to criticize it as non-democratic. However, that alone won’t vindicate the current reform and reformers. So let’s talk about that.

IV — TODAY’S REFORMS

Alright, so maybe Israel’s judicialized constitutioning isn’t the best approach. But why is reform on the table now?

Well, in recent years, Israeli politics has been a little…chaotic. Five elections in four years, plus an uptick in civil violence^[18] led to a surge in support for the extreme right and the birth of a pro-reform right-wing coalition government in the Knesset.

So why is the new coalition so critical of the Court’s power?

Well, not every party in the coalition has the exact same reason for going after the Supreme Court. Longtime Prime Minister Benjamin Netanyahu wants to prevent it from intervening against him in his corruption case,^[19] while Ultra-Orthodox parties want to preserve their special exemption from normally-mandatory service in the military.^[20]

But on two points, the parties in the coalition do mainly agree. The first of these is basically just cultural conservatism. The Court’s rulings have expanded LGBTQ rights and protections for asylum seekers^[21]—a problem for the Israeli right.^[22]

The second point has to do with the status of non-Jewish Arabs. The coalition sees Israel not just as a Jewish state, but a state primarily and uniquely for the Jewish people. To that end, the coalition’s written agreement sets out a goal to entrench a two-tiered system of justice in military-occupied areas to treat Jews and non-Jews differently.^[23] These are far-reaching changes that the Court would likely reject.

But what exactly are the proposed judicial reforms at issue right now? Well, they basically boil down to three main components.^[24] The first gives any governing coalition in the Knesset majority control over judicial appointments, which reduces the Court’s independence from politics, but is actually fairly standard for modern democracies. The second allows the Knesset to override any Court decision with a simple majority, and the third pre-emptively curbs the judiciary’s power to review legislation.

If you add it all up—both the motives and the reform plan itself—this begins to look eerily like an attack on separation of powers in order to enable an unraveling of liberal rights.

V — WHAT’S NEEDED

Netanyahu and the coalition assert that by restoring power the Knesset, which is elected, these reforms make Israel decidedly more democratic.^[25] Now, while Israel’s status quo of judicial constitutionalism is patently unsustainable, and while these reforms would make Israel more democratic, more democracy does not necessarily mean better democracy, especially in this case.

Now, you’ve probably already typed the word “hypocrite” in a comment, but let me explain.

Allowing a majority of the Knesset—or any legislative body—to decide the law without any constraints such as a constitution is not a recipe for sustainable democracy.

This may empower a democratic majority more fully, but it also would allow that majority to tyrannize a country’s minority. If the majority says some minority can’t have rights, who or what could stop them? Soon enough, that minority may not have the right to run for office, equal legal representation, or even to vote.

Unfettered “democracy” invites a tyranny of the majority and, eventually, the death of democracy itself. In Israel, with these coalition partners, such outcomes aren’t hard to imagine.

It’s no coincidence that outside of Israel the only democracies without constitutions are the world’s oldest—the UK, where its institutions developed deep roots and evolved over centuries—and a former colony of the UK—New Zealand, which inherited London’s systems.^[26]

Israel is in a moment of tremendous importance, surpassed perhaps only by its founding, from 1948 to 1950. This means there is incredible opportunity, a chance to settle a dilemma that should have been addressed 70 years ago, not left to fester and grow into today’s regime crisis.

Yet with opportunity…comes risk. It isn’t unreasonable to take the President and Prime Minister at their words, that the country has so far only narrowly avoided a civil war.

Israel needs reform. To defend the status quo ignores glaring problems, and in most cases is likely simple partisanship, not clear thinking. However, the present reforms are a disastrous idea, and the motives driving the coalition are far from genuine concern for the nation.

Contrary to the reformers’ claims, what Israel needs is not more democracy and less constitutionalism but better of each.