When the most distinguished former chair of Israel’s Supreme Court, the 86-year-old Holocaust survivor Aharon Barak, said that he would go before a “firing squad” if it would help prevent what he sees as an existential threat to his country’s democracy, it’s a safe bet he was talking about something momentous.
Barak’s January denunciation of the attempt by Benjamin Netanyahu’s new government to neuter the Court was just part of what has brought many tens of thousands of Israeli citizens out in unprecedented protests across the country. An impressive array of judicial, political, ex-military and intelligence leaders have warned that Netanyahu’s programme is leading Israel on a path akin to that of authoritarian governments like Hungary and Poland at best, and dictatorship and “fascism” at worst.
The coalition formed on 29 December is easily the most right wing in Israel’s history and includes in key Cabinet posts two religious and avowedly extreme and anti-Arab supremacists, Bezalal Smotrich and Itamar Ben Gvir, both determined that Israel should annex the occupied West Bank. Their appointment adds a volatile new element to a conflict in which 14 Israelis and 70 Palestinians have been killed this year alone.
But it is the “reforms” to the Supreme Court drawn up by Netanyahu’s justice minister Yariv Levin which, opposed by an Israeli majority in opinion polls, have unleashed a wave of outrage on the streets. These include clauses heavily curbing judicial review, removing the criterion of “reasonableness” by which it can judge government decisions, for appointments of the Court to fall under the direct control of the government, and for judgements ruling that a government decision in unlawful or conflicts with semi-constitutional Basic Laws to be overruled by a simple majority in the Knesset (parliament).
The Court is hardly the “overmighty” bastion of liberalism depicted by its critics. Last year, for example, it approved the planned eviction of 1000 southern West Bank Palestinians from their homes purportedly to make way for an Israeli military firing zone. But it remains the last hope for individuals, Jewish or Arab, fighting against unjust decisions, whether legal or administrative. What’s more in Israel’s single parliamentary chamber system the Court is the only check and balance on the executive and the Knesset majority it invariably commands.
The changes to the Court should not be seen in isolation from other measures planned or already in various stages of enactment or proposal. These include allowing the death penalty – unused since the Nazi war criminal Adolf Eichmann’s execution in 1962 – for Palestinian terrorists, and the power to deprive Arab—though not Jewish—terrorists of residency as well as citizenship. Fears of secular Israelis have been fuelled by calls from ultra-orthodox parties for an end to the ban on segregation of men and women at publicly funded events, while Smotrich has even called for the banning of Arab political parties, representing nearly 20% of the Israeli population. Already under way is a bill to curb the law officers’ power to declare the prime minister unfit to rule. Many Israelis also see the wider judicial reforms partly as an attempt by Netanyahu to escape the possible consequences of his ongoing trial on three corruption charges.
The Netanyahu coalition agreement provides for prohibitively high taxation of Israeli civil-society organisations, several defending Palestinian human rights, which draw funding from mainly European governments, including Britain’s. The measure will not mostly apply to the many right-wing, pro-government advocacy groups because they are mainly funded by rich individuals, especially in the USA.
There has not yet been any legislative attack on Israel’s still fairly vibrant press, albeit in a market dominated by the pro-Netanyahu freesheet Israel Hayom. But writing after the election last October Aluf Benn, editor of the liberal newspaper Haaretz, pointed out that existing legislation for ordering a state of emergency lays down powers for a press clampdown, and suggested that Netanyahu, Smotrich and Ben Gvir wanted a state “in which criticising the government or replacing it will only be a pipe dream.”
In a sense, however, the changes to the Supreme Court are the programme’s hinge, by severely weakening its right to strike down any of these or other measures because, say, they do not conform with the 1992 Basic Law on Human Dignity and Liberty. Indeed if so far vain attempts by Israel’s President Isaac Herzog fail to secure a compromise on the changes, and the government passes the Court legislation by the end of March as it intends, a major stand-off between it and the Court is in prospect, leaving much of Israel—perhaps even including senior Army figures—having to choose between its recognition of an elected government and its respect for the law as it has prevailed since the state’s foundation 75 years ago.