The Threat Assessment Against Israeli Democracy

Orly Erez-Likhovski, the Director of the Israeli Religious Action Center (IRAC – the social justice arm of Israel’s Reform Jewish Movement), several weeks ago offered a power-point threat assessment on Israeli democracy by the most extreme right-wing Israeli government in the history of the state. Orly spoke to those of us on the International Advisory Council for the Israel Movement for Reform Judaism and gave me permission to post what she said. I added language only for the purpose of clarification.

Orly is a brilliant Israeli and American lawyer who has brought about significant legal achievements in Israel including making illegal gender segregation on public transportation, ending the Orthodox monopoly on state-funded salaries to rabbis, filing (and winning) the first ever class action suit regarding exclusion of and humiliating practices against women in Israeli society, and disqualifying racist candidates from running for seats in Israel’s Knesset (Parliament).

Orly cited the important work of Kim Lane Scheppele, an American scholar of law and politics at Princeton University, who describes 8 means to dismantle liberal democracies from within and cement authoritarian rule. Scheppele has studied Turkey, Hungary, and the United States (see her essay – “Autocratic Legalism” in The University of Chicago Law Review – https://lawreview.uchicago.edu/print-archive/autocratic-legalism). Orly suggests that Scheppele’s analysis is applicable to what is taking place in Israel today:

1. Winning democratic elections followed by an attack against democratic institutions (e.g. the judiciary, the media, the prosecutor’s office, the tax authority, and the election commission);
2. Dismantling the mechanisms that restrict the ruling government;
3. Controlling the Parliament through intimidation of its members thereby turning it to irrelevance as an independent government branch;
4. Subordinating the courts to the government through so-called “reforms”;
5. Gaining control over media outlets and spreading “fake news”;
6. Placing loyalists in key positions throughout the government and in the media;
7. Delegitimizing opponents of the government by calling them traitors;
8. Changing election laws to ensure future victory.

Introductory notes:

Understanding Israeli politics, political parties, and Israel’s “parliamentary democratic government” is challenging because there is no rigid constitution in Israel, though there have been continuous efforts to write one since the earliest years of the state. Many laws still on the books are founded upon Ottoman and British Mandate law that were in use before the establishment of the State of Israel in 1948. To take the place of a written constitution, Israel passed since 1950 fourteen “Basic Laws” (i.e.  laws which are supposed to be of a higher status than regular laws but in fact can be enacted and changed like any other law). Most of these laws deal with the various branches of government. Two basic laws constitute Israel’s “Bill of Rights” but again – they can be changed by a simple majority in the Knesset. See https://en.wikipedia.org/wiki/Basic_Laws_of_Israel).

Here is Orly’s power-point presentation:

Israeli democracy is already weak and vulnerable:

• There are no checks on the power of the Israeli government, except by the courts.
• Israel’s separation of powers is thin since the government controls the Knesset through its coalition majority (i.e. the current extreme right-wing government has 68 Members out of a total of 120 MKs (57 percent).

There are no democratic mechanisms of checks and balances in Israel that exist in other democratic countries:

• No 2 houses of parliament;
• No regional elections;
• No federal system;
• No presidential veto power;
• No international courts that the government must adhere to.

The right-wing Israeli government’s narrative and the assault on the courts:

• The current right-wing government advocates against the independence of the Supreme Court claiming the Supreme Court is too active in striking down laws and government decisions, thereby preventing the elected government from implementing the will of the people.
• The reality is that only 24 laws have been struck down by Israel’s Supreme Court in the past 30 years. The Supreme court is exceptionally cautious and will intervene only in exceptional circumstances.
• The claim that the courts do not allow the government to implement the will of the majority disregards 2 critical characteristics of a democracy: the separation of powers and the protection of human rights, especially minority rights.

2023 – The “Judicial Coup”:

• In December 2022, the government, led by PM Benjamin Netanyahu, took power.
• In January 2023, the government’s Justice Minister and Deputy Prime Minister Yariv Levin announced the intention of passing a series of laws dramatically weakening Israel’s democracy, especially in limiting the government’s Judicial Review in the following ways:

1. Taking away the Supreme Court’s ability to strike down Basic Laws that conflict with Israel’s democratic principles (meaning, any law could be shielded from judicial review simply by giving it the title “Basic Law”).
2. Severely limiting the Supreme Court’s ability to strike down “regular” laws.
3. Giving the Knesset the power to override a court decision and reenact a law that previously had been struck down by the Supreme Court.

Changing the process of nominating judges:

• Today, to assure non-partisan balance, new judges are nominated by a committee comprised of 3 Supreme Court Justices, 2 Government Ministers, 2 Members of Knesset, and 2 lawyers. 7 of the 9 members of the committee are required to nominate a Supreme Court Justice. The Chief Justice of the Supreme court is nominated by a majority of the above and traditionally the most senior justice has been chosen to be Chief Justice.
• However, the “Judicial Coup” aims to give the ruling coalition complete control over the judicial selection committee that would include 3 politically appointed ministers, 3 government coalition MKs, 3 justices, 2 opposition MKs, and for any nomination, 6 out of 11 majority would suffice.

The Attorney General (AG) and Legal Advisors of Government Ministries:

• Currently, the AG is nominated by a professional selection committee. The AG is the ultimate authority regarding the legality of governmental actions. The AG’s opinion about the legality of the government’s actions binds the government. The AG represents the government in the courts. The same is true about legal advisors to the government ministries who are all subordinated to the AG and not to government ministers.
• The “Judicial Coup” would allow the government to disregard the legal opinions of the AG and of legal advisors altogether and to choose a private lawyer to represent the government in court.

The “Reasonableness Doctrine”:

• The Supreme Court can intervene in administrative decisions judged “unreasonable” (i.e. arbitrary, capricious, having bias, and showing conflict of interest). The Supreme Court rarely rules that a government decision is “unreasonable” (averaging only 1.6 times/year since 1995).
• The “Judicial Coup” intended to prevent the Supreme Court from declaring any governmental or ministerial decision “unreasonable”.

What happened to the “Judicial Coup” legislation?

• Before October 7, 2023, due to the unprecedented nearly year-long public protests of hundreds of thousands of Israelis across political parties and religious streams, all but on of the components of the “Judicial Coup” legislation failed to become law. The only component of the “Judicial Coup” legislation that the Knesset approved (in July 2023) is abolishing the “Reasonableness Doctrine”.
• However, in January 2024, the Supreme Court struck down this law that abolished the “Reasonableness Doctrine” (sitting for the first time in Israel’s history in a full panel of 15 judges – suggesting how important the Supreme Court Justices understood this government action to be). This was also the first time the Supreme Court ever struck down a Basic Law. It did so on the grounds that the government’s action contradicts fundamental values in Israeli democracy (i.e. separation of powers and the rule of law).

The current government continues to promote a “Judicial/Regime Coup” post-October 7 – Why change the law if we can ignore it?

• Court packing– Since October 2023, 3 liberal justices (of the total of 15 Supreme Court Justices) retired at the mandatory retirement age of 70. The right-wing Justice Minister Yariv Levin refuses to convene the judicial selection committee to nominate 3 new justices because he does not have the votes to appoint the right-wing judges that he wants.
• Chief Justice of the Supreme Court– Justice Minister Levin refuses to follow the seniority rule and to obey court orders that have called for the appointment of a new Chief Justice, for the same reason above. The most senior judge who would become Chief Justice is a liberal, and Levin, consequently, has refused to act. For the first time in Israeli history, Israel has an interim Chief Justice.
• Ethics of Judges– There is an attempt to have the Knesset nominate a Commissioner in charge of judges’ ethics, thus providing for the political removal of judges.

The Attorney General (AG):

• The government wants to disregard the AG’s opinions. For example, ignoring the Supreme Court ruling regarding the draft requirement of Ultra-Orthodox Jews to serve in the army or the illegality of providing State subsidies to Ultra-Orthodox men who avoid army service.
• The government employs a private attorney to represent it in the courts thereby side-lining the AG altogether.
• There has been intensive incitement and threats against the AG (Gali Baharav-Miara), who was appointed in 2022 by former Prime Minister Naftali Bennett and Justice Minister Gideon Saar. She has been summoned by extremists in the current government to a government “hearing” and there are numerous right-wing calls for her to be fired simply for doing her job and upholding the law (although the government lacks the authority to do so).
• The current government passed a law to force senior legal advisors to government ministries to retire, thus enabling it to appoint legal advisors who will act as “yes-men”.

Politicization of the Police:

• National Security Minister Itamar Ben Gvir is a racist follower of the late Rabbi Meir Kahane. In a democracy, there should be a high wall between government ministers and the professional operation of the police. Ben Gvir has crashed that wall, and he intervenes regularly in police work (e.g. investigations, arrests, and nominations that include promoting violent officers).
• There is selective enforcement of laws – harsh treatment of anti-government protesters as opposed to lenient treatment of extreme right-wing violence against Palestinians.
• There is a petition pending before the Supreme Court challenging the law that allows the minister to intervene in police investigations.

Attack on Academia:

• A bill is being presented to the Knesset that would force universities to fire professors based on expressions of “supporting terror,” but without due process, thus enabling political persecution without having to bring evidence or secure a conviction.
• Universities that fail to fire such professors will be denied state funding.
• A similar law regarding teachers in schools was already approved.
• The person in charge of enforcing this law would be the government’s right-wing Education Minister Yoav Kisch, thereby dramatically restricting free speech.

Attack on the Media:

• The right-wing government is presenting favorable regulation of pro-government TV stations such as Channel 14 (Israel’s equivalent of America’s “Fox News”).
• The government strives to weaken media outlets critical of the government (e.g. the Public Broadcast Authority, Haaretz, and Galei Tzahal– the official radio station of Israel’s army).
• The government is striving to turn regional radio stations (most privately owned by moguls connected to the government) into state-wide stations as a favor to owners.
• The government is striving to change the rating system of media stations (as implemented by an independent, not-for-profit organization that measures viewership data to determine ratings for television channels and programs) to be controlled by the government.
• After October 7, 2023, the government passed a law allowing the government’s Communications Minister to shut down media outlets – Al Jazeerawas shut down in April 2024.
• A new bill will grant the government more sweeping powers – allowing the government to shut down internet sites.

Bills against Palestinian Citizens of Israel:

• A law is being proposed that will make it easier to disqualify Arab Political Parties and Arab candidates from running in elections for the Knesset thus ensuring a majority for the current right-wing government in future elections. Twenty percent of Israel’s total population is Palestinian-Israeli citizens. Only once was an Arab Political Party (Ra’am) part of a ruling Israeli government coalition (in 2021-2022). Eliminating Arab Parties from the Knesset would tip the balance of the total 120 Knesset members to right-wing control of the government. Israeli law requires that much evidence must be presented to support disqualifying a political party or a candidate on the basis of terrorism. This new law would only require bringing “one case” or “one statement” to disqualify said party or candidate, while in order to disqualify racist right-wing parties one would need to present a heavy case of evidence.
• The government is striving to abolish the need for the state attorney’s approval of police investigations on incitement offenses. It is certainly legitimate to investigate support for Hamas’s attack against Israel on October 7, but it is another matter to investigate someone who publicly expresses concern for Palestinian well-being in Gaza as a consequence of the war. This law would have a chilling effect on Palestinian free speech in Israel. There is already selective enforcement for incitement offenses against Palestinians since October 7, 2023 and this would make the situation worse.
• Efforts are being made to prevent the General Security Service from using administrative custody towards Jews accused of terrorism and allowing it only to be used against Palestinians accused of terrorism.

Additional Dangers:

• Civil Service– changing the way the non-partisan Commissioner of Civil Service is nominated to gain governmental control over the nomination.
• Bar Association– weakening the Israeli Bar Association in order to influence its representatives on the committee nominating judges.
• Rabbis’ Law– adding hundreds of state paid rabbis, all of whom are Orthodox men chosen by the government, thereby deepening the Orthodox monopoly and discrimination against other non-Orthodox religious streams (e.g. Conservative, Reform, etc.).
• Rabbinical Courts– promoting a bill that will give rabbinical courts jurisdiction over civil matters (currently they have jurisdiction only over matters of marriage and divorce), thereby promoting a theocracy over Israel’s democracy.
• Military Draft– promoting a bill that will grant exemption from the military draft to Ultra-Orthodox Jews, contrary to Supreme Court decisions.
• Settler Violence against Palestinians– extreme Jewish settlers’ violence against Palestinians under occupation in the West Bank which is not treated in an equivalent manner to Palestinian violence against Jewish settlers.
• West Bank Status– the civil responsibility for the West Bank is being transferred from military officers to people affiliated with the extreme right-wing Finance Minster Betzalel Smotrich thus paving the way for de jure annexation of the West Bank into Israel.

What is IRAC (the Reform Movement’s Israel Religious Action Center) doing in the face of such dangers?

• In the Knesset, our lawyers are attending committee meetings, filing position papers, and opposing dangerous bills that would harm Israeli democracy.
• Our Israeli Reform movement is participating in public campaigns to raise awareness to all the above dangers.
• We are working in cooperation with other Israeli NGOs and human rights organizations to create a stronger impact and effective messaging against all threats to Israel’s democracy.
• We are protesting alongside hundreds of thousands of Israelis from across the religious streams and political parties who regard seriously the dangers posed against Israeli democracy by the current extremist government and refuse to be silent.
• In appropriate cases we are challenging all the dangerous policies and laws in court.

We must remember the words of Dr. Martin Luther King Jr. – “The ultimate tragedy is not the oppression and cruelty by the bad people, but the silence over that by the good people.”

We will not be silent but act to preserve Israel as a Jewish and democratic State.

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