Press "Enter" to skip to content

The Devolution of Democracy: A Systematic Decimation of Israel’s Judiciary

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government,” wrote James Madison in Federalist No. 51. Madison understood that an absence of checks and balances on a government would allow the realities of the world to bring out the worst of human nature. Drawing on these premises, prominent democracies have implemented some degree of checks and balances in which the three predominant branches of government—the legislative, executive, and judiciary —limit each other’s desires to accumulate power disproportionately. Historically, that has been the case with Israel’s supposed democracy. Israel, since its founding in 1948, has involved itself in a series of geopolitical controversies, namely the Israel-Palestine conflict over disputed land. However, Israel has maintained democratic order through peaceful transitions of power, developed checks and balances, and respect for political institutions. Despite Israel’s long history of democratic balance, recent actions by Prime Minister Benjamin Netanyahu to limit judicial independence challenges this long-standing tradition. Anti-government backlash has plagued the nation, accusing the current administration of undermining democracy. 

Israel does not model its political system around a formal written constitution, similar to the United Kingdom. Given that a constitution is considered the highest law of the land, and that the supreme court has the role of interpreting such documents, the absence of a constitution means that the Israeli judiciary has more power to control political outcomes. Without the guiding principles of law embedded in a constitution, the institutions of government are more prone to power struggles that affect citizens adversely. For example, in instances where decrees by prime ministers and rulings from judicial bodies clash, the nation has to rely on varying precedents to resolve the issue with no final arbiter of what should be done procedurally. Even supposedly impartial bodies, such as the judiciary, are more likely to become political actors as a result of such politics. 

The possibility of a powerful judiciary serves as the underlying roots of Netanyahu’s motivations to overhaul the judicial system. It is Netanyahu’s desire to implement his own vision of Israel without the interference of another governing body that ostensibly drives such proposed reforms. For instance, Netanyahu has vied for control over Israeli media. Although he seems reluctant to outright control private media outlets by injecting government stakes into the corporations, he works to station government-friendly parties at the helm of such companies. Under this status quo, there is no need to even make seemingly illegitimate arrests of dissidents, government protestors, or controversial journalists in the first place. Through this reform, Netanyahu’s exercise of authoritarian powers will be hidden under the facade of democracy. 

With regards to how judicial reform will help Netanyahu’s far-right government achieve these objectives, the proposed bill posits that the nine member committee that selects judges to the supreme court be a government-endorsed majority. Additionally, should the reforms be passed, the parliament will be given the right to pass laws previously ruled invalid by the supreme court with just three extra votes. In his formal address, Netanyahu reasoned that the supreme court has become an elitist organization that does not represent the interests of the common Israeli people. He stated that appointed members of the supreme court should not hinder the will of the people represented through elected officials (namely, himself and parliamentary members that favor his policies). His actions point to a desire to maintain power for an indefinite period of time. A small caveat of the bill is that candidates for prime minister are less likely to be declared unfit for office. If such matters come to a vote, the prime minister himself or two thirds of the cabinet (appointed by the prime minister) will contribute their opinions on whether or not the prime minister fit for service. This self-reinforcing cycle indicates that Netanyahu intends to maintain his grip on the executive position of Israeli politics. Although a minor factor in the broad scheme of political changes Netanyahu is imposing on Israel, his age and capability to lead a nation for another election cycle may be a factor in choosing to assert more unilateral authority over the other branches of government. 

However, Netanyahu’s trial for corruption is more likely to be a contributing factor to his desperation to cling onto power. Coming under fire for fraud, bribery, and breach of trust in relation to powerful media and political entities, Netanyahu is facing indictment for his actions. In spite of these accusations, Israeli law dictates that prime ministers cannot be indicted. While on legal terms, the prime minister can be pursued for indictment by the attorney general, he or she may request the parliament to be granted immunity. Therefore, Netanyahu’s underlying motivations for his struggles for power may be strongly linked to such a precedent. Moreover, Netanyahu is bound to several far-right political parties to which he owes his electoral victory. Itamar Ben-Gvir, a far right extremist with ties to the Jewish Power Party, led a coalition of other parties to gift Netanyahu a decisive margin in his bid for prime minister. In return, Netanyahu was compelled to deliver on the current proposed judicial reforms. In essence, Netanyahu has no choice but to pass this reform in order to cling onto power and avoid criminal charges. 

Should this bill pass, which the current trajectory suggests it will, it could have a series of implications on Netanyahu’s ulterior political motives. Media control aside, the predominantly Jewish nation of Israel has sought to discriminate against its LGTBQ+ citizens through rule by law in healthcare and essential services. In the public spotlight, Netanyahu has condemned anti-LGBTQ+ policies from business owners stating that they have the right to deny sexual minorities service on the grounds of religion. However, Netanyahu’s political track record suggests the contrary in terms of policies he has thrown himself behind. This extension of rule by law will not only decimate Israel’s legitimacy as a democratic country with due legal processes, but also cause an internal implosion of political order. As the government incrementally increases power in their favor, precedents will be set to have ripple effects on other areas of governance, especially regarding separation of powers. 

Perhaps most importantly in both the domestic and international sphere, this could undoubtedly impact the Israel-Palestine dispute over the West Bank. Netanyahu has repeatedly emphasized the heritage of Jewish people on the lands of Israel, including the primarily Palestinian-populated West Bank since 1967. More independence in terms of decision making processes without the influence and balance brought by other institutions of government, Netanyahu could forcibly reassert control over the West Bank and impact many Palestinians’ livelihoods.  Understandably, the Israeli people have demonstrated their resistance against these proposed changes. With protests running rampant across the country, tens of thousands have taken to the streets to voice their concerns about the judicial reforms and its implications. Historically speaking, protests have proven effective in nudging the Israeli government to change course from its path of determined political outcomes. The recent LGBT labor strike in Israel is a testament to the fact. Laborers fiercely protested Netanyahu’s policy banning women from acting as surrogate mothers to same-sex couples. Concerns over same-sex couples’ ability to be parents were expressed in this event. In 2022, the efforts of the protestors’ labor bore fruit, as the ban was lifted. Although the process was arduous and time-consuming, the Israeli government was ultimately responsive to the voice of their constituents. Correspondingly, such sweeping changes on the judiciary affects not only minorities, but also the Israeli citizens as a whole. In the context of this particular case, the protests have more merit due to support from the Israeli military reserve forces and active members. Many reservists voiced their anti-government sentiments, and refused to partake in training until the issue is resolved in their favor. Given that the Israeli military is a crucial pillar by which the country operates, both politically and economically, Netanyahu must carefully weigh his allegiances. Ultimately, utilizing the full extent of collective action, the reforms to the judiciary may be blocked to preserve the remnants of democracy that Israel has to offer.

Featured Image Source: CNN

Comments are closed.