Analysis | A Dark Day for Israeli Democracy

On Monday, July 24, at 3:46 p.m. Israel time, the Knesset voted to abolish the criterion of “reasonableness” as the grounds for judicial oversight of government decisions and appointments. And with that, a multitude of Israelis felt their country had moved dangerously further from the values of democracy, equality and tolerant Judaism and frighteningly closer to autocracy and illiberalism.

Following the vote, Prime Minister Benjamin Netanyahu’s conservative coalition celebrated on the Knesset floor with smug selfies. The market and the Israeli shekel immediately fell, and protests deteriorated further into pandemonium as hundreds of thousands of demonstrators, many hundreds of whom had been camping outside the Knesset for days, took to the streets. They blocked major transportation arteries, waving the Israeli flag, screaming “shame on you!” and singing: “If there is no equality, we will topple the government; you’ve picked the wrong generation to tangle with!” The police responded with water and skunk cannons, smoke bombs, clubs and horses to disperse the demonstrators. The chaos continued throughout the night.

Until Monday, if the Israeli Supreme Court was petitioned to examine a government decision or an appointment and the court determined that the government had used political, irrelevant or arbitrary considerations in making it, or if the government action was determined to be discriminatory or antidemocratic, the court could reverse or strike it down under the so-called reasonableness standard. For example, when forming his government in January 2023, Benjamin Netanyahu appointed his loyal supporter, ultra-Orthodox Shas-leader Aryeh Deri, to head three ministries—including the Treasury. In response to petitions brought by civil society and political groups, the court ruled, given Deri’s long history of corruption convictions and his promise to stay out of politics as part of a plea deal in his most recent corruption trial, that the appointment was unreasonable.

“But we were elected and the judges are not!” has been the refrain of the politicians who voted Monday to abolish the standard. They were unpersuaded by the fact that “reasonableness” is a foundational element of the legal system not only in Israel, but in many other “common law” countries, where the law is determined by judicial precedent rather than statutes, from England to the United States, Canada, Australia, New Zealand, India, Singapore and beyond. Nor did they take into account that since 2003, the court has actually rejected 52 of the 64 petitions it received to strike down a government appointment, and of the 12 it did decide to rescind, only seven applied the reasonableness standard.

With no judicial oversight, Netanyahu’s government can use its powers to fire and appoint anyone it wants, to use public resources for pet projects and to otherwise abuse its power. (And it’s hardly surprising that Netanyahu, currently on trial for fraud, breach of trust and accepting bribes, is leading the effort to weaken the judiciary.) This ultra-conservative and ultra-nationalistic government will have the power to make Israel over in its own image—more religious, less tolerant, less pluralistic, more hateful—without the threat of the reasonableness standard being applied by the judiciary. 

It is now far more likely, for example, that Settlements and National Missions Minister Orit Strook will make good on her promise to present legislation stipulating that doctors have the right to choose what kind of patient they are willing to treat. Finance Minister Bezalel Smotrich may well push a law, as he has said he might, that Jewish and Arab women should not give birth next to each other. And the coalition parties can propose legislation to allow private businesses to deny their product or service selectively to some customers or for medical personnel to withhold care, including fertility treatments for unmarried women and LGBTQ couples, if it goes against their religious convictions.

Demonstrators protest in Jerusalem against the Knesset’s vote to strip “reasonableness” as a criterion of judicial review. Credit: Eetta Prince-Gibson

Nor can anything be done to stop a proposal to change the criteria for banning candidates from running for the Knesset, making it easier to push out Arab-led parties and MKs representing some 20 percent of Israel’s population, thus guaranteeing that Israel will not be able to create a center-left government. Or a bill to impose sweeping new restrictions on freedom of worship at the Western Wall that would ban visitors from wearing “immodest” clothing; prevent egalitarian, mixed-gender prayer at the section of the holy site where it is now allowed; and criminalize the activity of the Women of the Wall prayer rights group. The legislation proposed and shelved back in February called for violators to be slapped with a half-year prison term and a fine of up to 10,000 shekels ($2,867).

Coalition members have repeatedly proclaimed that they are enacting the will of the people. But according to a recent survey by the Israel Democracy Institute, barely one-half of all voters for coalition parties would like to see the implementation of these judicial reforms continue as planned. About 30 percent of those who voted for the Likud, Netanyahu’s own party, are against it.

Meanwhile, the hundreds of thousands of Israelis who have been protesting the government for 30 consecutive weeks acknowledge that the Netanyahu coalition won in the November elections, and that it has a democratic right to govern this country. But does it have the right to use the democratic process to destroy democracy?

This government has ridiculed calls by U.S. President Joe Biden and other world leaders to seek consensus and to maintain democratic values. It has ignored doctors and medical personnel who went on strike because they fear that patients’ rights, including access to abortions, could be eliminated and that unqualified people will be appointed to high-level positions. And it made light of the fact that 68 percent of Israeli startups have started to take legal and financial steps, including the withdrawal of cash reserves, to move their headquarters outside of Israel, relocate employees and conduct layoffs.

Netanyahu, who has branded himself as Mr. Security, disregarded the letter signed by 10,000 IDF reservists stating they will suspend their volunteer reserve duty in protest of the government’s plans to overhaul the judicial system. He belittled the statement by 1,142 Israeli Air Force reservists, including over 400 pilots, that they will suspend their volunteer reserve duty. And his response to warnings from the military’s chief of staff that the judicial overhaul is splitting the military and that Israel’s existence could be imperiled? “The country can get by without a few [Air Force] squadrons, but not without a government.”

On Tuesday, with the acrid smell of sulfur from skunk-mobiles still wafting through Jerusalem, with dozens of demonstrators wounded and dozens more arrested, Netanyahu offered to restart negotiations with the opposition over future judicial changes and to put the rest of the government’s overhaul plan on hold until late November. But it seemed that hardly anyone was listening and instead were taking National Security Minister Itamar Ben-Gvir at his word when he said that “the reasonableness clause is just the tip of the iceberg…the appetizer to build up the appetite.” 

Many of the protestors I encountered on Monday wore T-shirts with quotes from the Book of Eicha. Also known as the Book of Lamentations, it’s traditionally read on the 9th of the Hebrew month of Av, when the Jewish people suffered the loss of two biblical temples and Jewish sovereignty. How telling that the 9th of Av would begin on Wednesday night, as we are at risk again, perhaps not for expulsion, but certainly for the loss of our dreams of a democratic and Jewish Israel. 

 Josephus the historian tells us infighting among the Zealots resulted in the burning of all of the food storehouses of Jerusalem, even as the Romans threatened and ultimately vanquished the city. But this time, we who believe in our country will not let the extremists burn our social, political, economic and emotional storehouses. Imperfect as the country is, we have no intention of mourning the democratic third commonwealth next year at this time.

Top image: Demonstrators protest in Jerusalem against the Knesset’s vote to strip “reasonableness” as a criterion of judicial review. Credit: Eetta Prince-Gibson