Massive Protests Show Israelis Understand Democracies Die Gradually

In Israel, the equivalent of 70 million Americans have gone out to protest the Netanyahu government's attempt to break the country's constitutional order. Populist politics is at war with the mainstream public opinion that it claims to represent

Photos: Ohad Zwigenberg/ AP / Artwork: Anastasia Shub

The Knesset's decision Monday to approve in an initial vote a law that would stymie the Supreme Court’s ability to block government decisions it deems “unreasonable” is yet one more critical step in Israel’s democratic backsliding.

On the political level, it symbolizes the continuation of this government’s push to ram through a legislative package that would weaken the courts, changing the rules of the democratic game and breaking with the established norms and institutions of Israel’s existing constitutional order.

On the public level, it reflects the extension of populist power by the current government – the most far-right and religious in the country’s history – and its tendency to favor extreme factions on the fringes of the government's coalition, at the expense of mainstream Israeli public opinion.

It is no wonder that this aggressive move will prolong this time of crisis in Israel, in which the country is being rocked by a constitutional conflict and the accompanying mass protests, now in their sixth month.

 

Even if the current amendment passes “on its own” and not as part of the broader package of what its proponents call “judicial reform” and the protest movement has dubbed “a judicial coup,” it will be reviewed by the Supreme Court. It would be correct to estimate that the court will strike it down, which will lead to a constitutional showdown with the government.

This comes after the court's January ruling that stated that Arye Dery, a former minister, leader of the Shas party and confidante of Prime Minister Benjamin Netanyahu, would not be able to serve in the cabinet because of his criminal conviction last year and subsequent suspended sentence.

The court had tapped the “reasonableness standard,” stating it was unreasonable for him to be appointed to a Cabinet post. Part of the judicial overhaul includes legislation aimed at facilitating his appointment, which would alter the qualifications of service following criminal convictions.

This will be the second time since the establishment of this Netanyahu government that the Supreme Court will have to uphold a constitutional standard, once again, under the almost impossible reality of harsh political attacks on the very legitimacy of the court and Israel's attorney general, who faces constant threats of impeachment. Without the protest movement, we can’t know how the court would have reacted to this moment of rising political populism.

But the public protest and its high rate of participation, with hundreds of thousands of Israelis in the streets across the country on a weekly basis, generates significant legitimacy for opposition to the government's legislative moves. Some 21 percent of all Israelis have taken part in the protests, according to figures collected by the Israel Democratic Institute. That’s the equivalent of 70 million Americans protesting, based on the current population of the United States.

For several months now, government actions have not enjoyed full democratic legitimacy. Its course is being led mainly by its extreme wing of far-right parties. As current polls show, the protests do not only include left-wing voters; a significant portion of Likud (the ruling party) voters oppose the government's moves.

Polls by the Israel Democracy Institute show, for example, that less than a third of voters support the proposed amendment that would block judges from using “reasonableness” to strike down decisions made by lawmakers. Among Likud voters, less than half support the proposal – just 45 percent.

Indeed, the protest leaders’ decision to increase their efforts, by unleashing a new, massive wave of demonstrations on Tuesday in response to the renewed push of the judicial overhaul plan, is the right call. Their battle against abolishing “reasonableness” reveals that people have learned from other fragile democracies that democracies do not die suddenly, but gradually.

The coalition's ambition to abolish the reasonableness standard, now submitted to the Knesset as a stand-alone move, is actually part of their broader plan: aspiration for unlimited power. The Israeli demonstrators understand the so-called "salami method” that contemporary autocrats have been fond of using, in which they slice up a plan to reduce democracy into smaller individual pieces of legislation to make each of these “smaller” moves look innocuous, and are responding accordingly.

They are not allowing unilateral moves like this pass without standing firm in strong opposition. It should be noted that it is only the protests that succeeded in driving Likud back to the compromise efforts led by President Isaac Herzog.

Meanwhile, we see that Israel’s opposition parties no longer have any leverage on the government's will and ability to push through their judicial overhaul legislation. With the compromise talks in crisis, only extra-parliamentary action in the form of mass protest can succeed, perhaps, in stopping the continued legislative onslaught.

The battle for reasonableness is a profound one, a fight for democratic reason in the exercise of power in Israel.

The current battle over the reasonableness standard is not just another step in the government's backsliding agenda. It is an expression of a deeper cultural struggle within the Israeli public sphere, concerning the nature of citizen-government relations.

In Israeli public law, the reasonableness standard in government decisions has become the way in which the court democratically assists in increasing the executive branch’s accountability. In Israel, it is not an exaggeration to say that the latter is almost omnipotent. Reasonableness, in this context, is not just a legal instrument.

It is an institution within the Israeli constitutional order, though formally embedded in administrative law, which increases the extent to which all government authorities – at their various levels – justify their actions to the public and political sphere.

It is not for nothing that reasonableness is described as an important component of former chief justice of the Supreme Court Aharon Barak's ”constitutional revolution.” This reflects advances in democratic thought in Israel during the 1980's, which held that government must exercise “public reason,” meaning to balance all considerations in public action, and just as important: expose the government’s decision processes to democratic oversight by the Knesset and the public.

This is a culture of governance in which government action must be justified before the public. The current move to abolish the reasonableness standard does not only symbolize the government's desire to ease restraints on the appointment of public officials or in policy decisions. It also symbolizes wholesale rejection of this democratic logic, the legacy of the constitutional revolution, which requires a governmental culture of justification.

Rest assured, this is not just a technical battle over a dry legal mechanism, but over the extent to which the government may act unreasonably with no recourse from the courts or any other institution.

It’s important to remember that this struggle is not conducted in a vacuum. It’s part of a series of bills that fit the definition of “unreasonable” legislation. One striking example is a bill that would expand the possibility of administrative detention (the power of the government to imprison someone suspected of a crime without trial) within Israel’s borders. It should be noted this is something Israel already does routinely with Palestinians it arrests and detains in the West Bank.

A second example is a bill that would allow government ministers to promote public servants considered loyal to them to run for elections in local authorities in an utterly clientist manner.

To all of these one must add the significance of withdrawing the reasonableness standard in the non-democratic sphere of Israel, as in the Palestinians under its occupation. Contrary to constitutional law, which applies in the vast majority of cases to Israeli citizens, administrative law and its “reasonableness” also apply in the occupied territories.

The current government – the most extreme coalition in the history of the State of Israel – is not disguising its intentions to expand the settlement enterprise in the West Bank. Some government members even openly encourage violence by extremist Jews.

The battle for limited power of the government and for the rule of law is applicable to both Israel and the Occupied Territories. It’s impossible to separate anti-democratic moves within Israel from the desire to continue and expand conspicuous illegality in the territories.

In this sense, the Kaplan Street demonstrators also represent the possibility of a powerful civil demand by the people to end the government's hawkish policy in the West Bank, although this voice is still marginal and disputed within the protest movement itself.

 

This article was published in Haaretz.com.