Israel is undergoing a revolution. Netanyahu and his partners are trying to change the rules of the game and grant themselves unlimited power. They are promoting legislation empowering any ruling coalition to cancel elections, eliminate fundamental rights, and override existing checks and balances.
But the public and the country's other institutions won't let this happen. Israel is headed for a constitutional crisis in which the Supreme Court will have to strike down new laws that aim to prevent it from striking down any laws. The country's security forces will soon have to decide whether they obey the government or obey the court.
The Israeli public will be compelled to step up and show its support for one side or the other through protests, civil disobedience, and worse. This process has already begun. Over the past eleven weeks, more than half a million Israelis took to the streets in protest of the proposed legal changes. Protesters are peaceful, but they occasionally block vital roads and camp outside the homes and offices of key officials. Meanwhile, hundreds of active and retired officials oppose the coalition's plan. This group includes the head of Israel's Central Bank and the recently retired heads of Mossad and Shin Bet. All three of them were initially appointed by Netanyahu. In addition, thousands of reservists of Israel's elite military and airforce units pledged to stop serving if the proposed legislation goes through.
How did this happen?
Israel is an incomplete democracy. It has no constitution. Its executive branch is intertwined with its legislative branch, resulting in a weak separation of these two powers. The judicial branch is the only check on the combined power of the other two.
But the judicial branch has its own issues. At times, the Supreme Court rules without grounding in existing laws. Supreme Court judges have a plurality of seats in the committee that chooses their successors. This creates the appearance of a small unelected group with excessive power. This state of affairs is not always bad, but it is not ideal: Many of the fundamental rights of Israeli citizens — free speech, for example — are held up based on judicial opinions and not on explicit laws.
Israel's legislative vacuum requires judges to come up with interpretations based on their own values and the spirit of the country's Declaration of Independence. This document describes the country's ethos but does not include actual laws. In the 75 years since Israel's inception, elected officials avoided legislating many key rights and responsibilities. They also avoided defining the country's borders.
Elected officials like to keep things vague to balance the tense relationship between the country's Jewish and democratic ethos. Israel is a multi-ethnic democracy but also a haven for a specific minority that does not fit into traditional definitions of race or religion. And this tiny minority comprises several groups with disparate religious views and territorial aspirations. The country aims to treat all people equally and maintain its unique Jewish character.
It might be possible to reconcile these tensions; many European democracies prioritize the culture and symbols of one group while granting equal rights to all others. But, so far, it was easier for Israeli politicians to let the court deal with these tensions rather than enact laws that may upset some constituents or portray the country in a bad light.
Israel's internal tensions are only half the story. The country is in a permanent crisis, under severe threat from large and small enemies that wish to destroy it. It controls territories in which around 3 million Palestinians live. These Palestinians are not Israeli citizens, do not vote in Israeli elections, and have limited or no recourse to Israel's courts. These territories also include settlements that house around 500,000 Israeli settlers. The latter are Israeli citizens, but the territories they live in have never been formally annexed by Israel's government and are not officially subject to Israeli law.
The Israeli-Palestinian conflict provides another incentive for politicians to avoid legal clarity. If Israel annexes the territories, it will have to give Palestinians equal rights or impose formal apartheid. It is more politically palatable to keep things ambiguous.
Israel's Supreme Court is in an impossible position. It is both too weak and too strong, both an extinguisher of political ambiguity and an enabler of it. Weak, as its rulings are not always grounded in clear laws. Strong, as it is often required to rule arbitrarily. Extinguisher, as it must rule in a way that makes certain things clear. And enabler, because its perceived independence helps legitimize military and procedural actions that might be illegal under international law.
As a result of the above, the court is an easy target for critics from all sides. Whatever the court does, it is easy to argue that it abuses its power or acts as a de facto legislator. A lot of this criticism has merit. At times, the court does indeed rule based on shaky legal foundations or defines rights and procedures that should be determined by elected officials. And Supreme Court judges are zealous about maintaining their independence and influence over the court's future composition. The judges are zealous, among other things, because they know that, as things stand, Israeli citizens have no fundamental rights without the court.
Netanyahu's coalition is exploiting this state of affairs to mount a concerted attack on Israel's governance system. Israel's democratic systems need reform, but the coalition does not aim to reform them; it seeks to destroy them.
Box 1 below has a summary of the coalition's legislative efforts. In a nutshell, the coalition seeks to grant itself the power to appoint judges, override the Supreme Court's decisions, and revise Israel's (already limited) set of civil rights legislation. If it succeeds, it will be able to cancel elections and do as it pleases.
Box 1: The Regime's Legislation and Budgeting Efforts
- Provide the ruling coalition with an automatic majority in appointing Supreme Court judges.
- Empower the coalition to appoint the Supreme Court's President and Deputy President, including appointees that did not previously serve on the court.
- Prevent or severely limit the Supreme Court from striking down legislation that contradicts other laws, precedents, or the spirit of Israel's Declaration of Independence (the closest thing Israel has to a constitution), and empower parliament to override the supreme court with a 51% majority.
- Prevent the Supreme Court from striking down government appointments. Specifically, the law aims to ensure that Mr. Deri could serve as the country's Finance Minister despite the court's ruling that his plea bargain prevents him from doing so.
- Restrict the independence of Israel's Chief of Police and empower the Minister of National Security (Mr. Ben-Gvir) to set police policy, including policy concerning criminal investigations.
- Transfer the police's Internal Affairs department from the department of justice to the direct control of the Justice Minister (meaning, from the professional legal bureaucracy to the political leader).
- Prevent the recusal of prime ministers from dealing with specific legislation unless they are mentally or physically incapacitated. Meaning, making it possible for Prime Minister Netanyahu to promote legislation and appointments that directly affect his existing trial and investigation.
- Free the government from the legal opinions and rulings of Attorney Generals.
- Prevent the Attorney General from opening an investigation against the prime minister, other than in specific cases involving violence, drugs, sexual abuse, or national security.
- Enable government ministers to override existing campaign finance and ethical restrictions and receive direct donations and funding for legal and medical costs. Specifically, to retroactively whitewash a $270,000 "gift" that Prime Minister Netanyahu received to finance his criminal defense.
- Subjugate the Israeli Central Elections Committee to the ruling coalition. Up to now, the chairman of this committee was appointed by the Supreme Court to prevent politicians from changing election procedures to their advantage.
- Prevent journalists from publishing recordings of other people's conversations.
- Prevent Israel's Central Bureau of Statistics from publishing any new data until the appointment of a new chief who will be trusted by Mr. Netanyahu.
- Impose severe jail time on protesters that block roads.
- Dramatically increase the budget of Israel's ultra-orthodox education system, which is separate from the "normal" education system and ׁdoes not teach basic English, math, history, and science.
- Require municipalities and government offices to hire ultra-orthodox Jews based on their relative share of the population (but not apply the same requirement for women or any other group).
But to succeed, these laws need to be approved by the Supreme Court. This creates a dangerous situation: The court will have to approve its own destruction. If it does, Israel will cease to be a liberal democracy, and all citizens will be at the mercy of whoever happens to be in power.
If the court rejects the new legislation, the coalition must decide whether it accepts the verdict or doubles down. Doubling down would mean attacking the court and inciting violence, trying to replace judges through emergency procedures or other political tricks.
These are not baseless speculations. Coalition members are already inciting their voters against the court and discussing various procedures that would allow them to appoint "temporary" judges that would rubber-stamp the new legislation. Following the massive public backlash, the coalition proposed postponing all legislation and passing only a single law that gives it control over judicial appointments. If that happens, the coalition will replace several judges over the next 18 months and set the stage for another legislative push.
Why is Netanyahu doing this now?
Because he can, because he must, and because he may no longer have a choice. Let me explain.
Israeli governments are formed by a coalition of multiple parties. Usually, these coalitions are pretty diverse. Prime Minister Benjamin Netanyahu is on trial facing three indictments for bribery, fraud, and breach of trust. As a result, the leaders of Israel's centrist and center-right parties promised their voters that they would not sit in a government led by Netanyahu.
Eschewed by moderate partners, Netanyahu allied with smaller parties that would normally remain outside the coalition or have moderate influence alongside more significant partners. The result is a coalition from hell, where each party has its own reasons to undermine the Supreme Court and the rule of law.
Let's start with the personal reasons. I already mentioned Netanyahu's ongoing trials. His partners bring their own baggage. Itamar Ben-Gvir, the newly appointed head of National Security, has eight criminal convictions. Among other things, he was convicted of supporting a terrorist organization and inciting racism. Ben Gvir is best known for threatening and damaging the vehicle of former Prime Minister Yitzhak Rabin, who was ultimately assassinated by a Jewish extremist.
Netanyahu's designated Finance Minister, Aryeh Deri, was convicted of fraud, bribery, and breach of trust, for which he spent two years in jail. Several years after his release and return to politics, Deri faced new charges and pleaded guilty to tax offenses in a deal that forced him to resign from Israel's parliament. He then attempted to return as a minister in Netanyahu's new government. The appointment was struck down by the Supreme Court, enforcing the terms of Deri's plea bargain.
Netanyahu's newly appointed Finance Minister, Bezalel Smotrich, is a self-styled "proud homophobe" who recently called for a Palestinian village to be "wiped off the map." He was previously arrested for charges that remain confidential. Smotrich previously published a plan to annex the West Bank and offer Palestinians to stay under Israeli rule as non-citizens or leave. Publishing this plan was not a crime, but executing it would require dismantling Israel's existing legal system.
The coalition has other ideological reasons to weaken the Supreme Court. A third of its members represent ultra-orthodox parties seeking to maintain their publicly-funded education systems, exempt their voters from compulsory national service, and enforce religious law on the whole population. These laws include shutting down public transport on the Sabbath, forcing all marriages to be handled by orthodox Rabbis, preventing women from singing in public events, and more. The Supreme Court is a major obstacle to enacting such discriminatory and coercive measures.
With such partners, Netanyahu can bulldoze the Supreme Court. It is no longer clear whether Netanyahu is the driving force or just a tool in the hands of the partners he depends on to stay in power. Either way, a set of anti-democratic interests are now aligned.
Is there any good news?
Yes! ׁThings are at a boiling point that forces different groups and the country as a whole to state their goals clearly. Some of these goals are terrifying, but once they are stated clearly, they trigger a reaction. And whether or not these laws pass, the reaction is already underway, both at home and abroad.
At home, hundreds of thousands of law-abiding citizens are expressing their dismay. They include religious and secular, left and right, men and women who may want different things but don't want to destroy Israel's fragile democracy. For decades, most Israelis assumed that Israel's anti-democratic instincts (mainly from the ultra-orthodox and settler movement) could be contained. It is now clear that they cannot. The political consequences of this realization are not yet clear, but there will be consequences.
Israel's friends and foes were alarmed and delighted to see the country torn apart by Netanyahu's anti-democratic push. The allies, like Israel's democratic majority, also realized that some groups and ideas deserve a more explicit repudiation. From now on, they will make it harder for the country to remain ambiguous about its goals. The foes will likely double down on their efforts to test the country's resolve — and remind all its inhabitants that they must find a way to get along.
And there are carrots, not just sticks. The Middle East is changing. The gulf states are looking to reorient their economies towards services and innovation. The Iranian government is threatened by its own citizens — which may lead to its downfall or make it more pragmatic. It may also lead it to do something desperate.
Meanwhile, the US, China, Russia, and India are rethinking their regional presence. It is a region full of potential that has not been unleashed. Israel has a strong interest and a significant role to play in unleashing it.
I may be dreaming. I am dreaming. I think it is time to reconsider all our assumptions, even about the things we've stopped hoping for. If the French and Germans can live in peace, so can Arabs and Jews. And the Middle East has more energy, more people, more capital to invest, more hunger to succeed, and more sunshine.
As for Israel's current crisis: Rapid legislation by a group of indicted and convicted criminals will not make Israeli democracy better. Weakening the Supreme Court, on its own, will only make things worse at home and abroad. The coalition must stop. The way forward requires people from all parties and factions to sit together and agree on a new bill of rights that defines and protects the fundamental rights of all citizens and defines how laws are enacted and vetted.
Netanyahu's legislative onslaught and the ensuing pushback revealed that Israel is ready for new ideas on all fronts. I, for one, believe that it is possible to reconcile the country's democratic and Jewish character in a way that secures the rights of all Israelis, including Arabs and other minorities. I also believe that it is possible to reconcile the rights and aspirations of Israelis with the rights and aspirations of Palestinians. These are daunting tasks, but they cannot be delayed.
A 75-year-old country is old enough to figure out what it wants and to say it clearly. And once it looks beyond its current struggles, it might notice the shifting sands around it. There are incredible opportunities for shared prosperity for Jews, Arabs, Persians, and others in the region — and for old and new friends from Washington to Beijing.