To prevent creeping authoritarianism and the complete disintegration of Israel’s democracy, it will be crucial to not only preserve the independence of the judiciary but to embrace other central pillars on which democracy rests.
The socio-political turmoil in Israel which is manifested by the pervasive hostility, distrust, and disdain between the religious nationalists and secular liberal Jews is tearing the country apart. The Netanyahu government’s determination to subordinate the judiciary to the whims of elected officials does not only compromise the independence of the judiciary, but it has also exposed the other shortcomings of Israel’s democracy which are exacerbating the schism between the two camps and taking the country to a point of no return.
To prevent Israel from self-destruction, the demonstrators who tenaciously and relentlessly poured into the streets by the hundreds of thousands to protest against the so-called judicial “reforms” must not be satisfied by simply restoring the independence of the judiciary. The conflict over these “reforms” offers a historic opportunity to examine and rectify every aspect of Israel’s democracy which has been compromised since the day of Israel’s inception. Regardless of how difficult such an undertaking might be, it is imperative to embark on it to prevent future onslaughts on Israel’s democracy by aspiring authoritarians while ensuring its sustainability for generations to come.
There are five areas of reforms that will preserve and substantially strengthen Israel’s democracy.
Ensuring the independence of the judiciary
For all intents and purposes, the battle over securing the independence of the judiciary has only begun. Given that the government succeeded in passing a law that cancels Israel’s “reasonableness standard,” which allowed the Supreme Court to review and strike down government policies that were deemed unreasonable, the courageous demonstrators must remain vigilant and relentless in their fight for the independence of the judiciary. When the Knesset resumes its legislative session in October, the Netanyahu government is still determined to enact additional laws to subordinate the judiciary to the legislative branch, thwart the courts from intervening in cases of human rights violations, and most critically, take control over the committee that appoints judges, including Supreme Court justices.
The Netanyahu government must have no illusion about what the ramifications will be should it procced with its disastrous plans, as some of the consequences of its earlier actions will only be compounded if Netanyahu refuses to stop his nefarious design to reshape the judiciary and conform it to the whims of his messianic, reactionary and staunchly nationalist partners.
What has already happened should be a wakeup call that the government can ignore only at its peril. High-tech workers and companies are looking to relocate, with 80 percent of Israeli start-ups registering in foreign countries rather than in Israel this year alone; emigration is significantly on the rise; foreign investment in start-up companies is drying out; the shekel is sinking; doctors are looking to relocate oversees; Moody’s and Morgan Stanley are issuing gloomy reports about Israel’s economic future, downgrading its credit and advising their clients not to invest in Israel; thousands of pilots and other military reservists are not reporting for their voluntary service, which impedes military readiness; and Israel’s international standing is at an alltime low.
To be sure, the amalgamation of economic (especially from the hightech industry) and military power is what has strengthened Israel’s hand politically and diplomatically over the years. The rapid erosion in these particular sectors poses a significant threat to Israel’s security and economic wellbeing.
The demonstrators must now doubly prepare to resort to any peaceful means to thwart further judicial “reforms.” Former Prime Minister Ehud Barak has called for “civil disobedience in the spirit of Mahatma Gandhi and Martin Luther King.” This includes rallies, demonstrations, work stoppages, civil disobedience, and general strikes. They must prepare to for these peaceful acts transparently to leave no doubt in the minds of Netanyahu and his colleagues that the initial fight over “reform” was a rehearsal for what might come, that it could paralyze the country completely should the government not heed their call.
Indeed, as American President Andrew Jackson observed, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.” Indeed, in the final analysis, an independent judiciary is the beating heart of democracy and any compromise between the government and the opposition that might be achieved must, under no circumstance, undermine the independence of the judiciary.
Separating state and religion
Another fundamental foundation of democracy is the separation between state and religion, which has not been the case from the day of Israel’s inception in 1948. While David Ben-Gurion, the founding father of modern Israel and first Prime Minister, initially granted undue authority to the rabbinical institutions for the sake of projecting unity, believing that ultimately “Liberal Judaism” would eventually win out, the opposite has occurred. The religious parties and the state institutions have further increased their power, became an integral part of most Israeli coalition governments and are among the most ardent supporters of the settlements.
The question is, given the presumed secular nature of Israel’s democracy, why should the rabbinical institutions be allowed to govern the lives of liberal Jews concerning marriages, divorce, circumcision, bar mitzvahs, etc., while encouraging gender separation and the restriction of public transportation, commerce and cultural activities on the Sabbath?
This runs completely against the essence of democracy, which derives its moral strength and legitimacy from individual autonomy, as people should be able to exercise self-determination and control over their own lives and be granted equal rights as well as accepting equal obligations. As Laurence Overmire observed: “The separation of church and state protects people of all faiths and no faith. No religion should be able to exercise control over a government and thereby dictate its theology onto any diverse group of free people.”
Thus, neither liberal Jews, nor the Hasidic community, nor religious extremists should be allowed to infringe on each other’s right to live as they see fit, which is exactly what democracy stands for when it comes to the separation between the state and religion. However, each side has obligations to the state to meet as well, which is why the religious community in Israel should not be exempt from meeting those obligations as they currently are, shirking military service in favor of Torah study. This too is inconsistent with democracy, when the burden to protect the nation is not shared equally by its citizens.
What is worse is that the religious community depends almost entirely on government funding to finance their institutions—funds which are largely generated from the liberal hard-working taxpayers whom the staunch nationalists and religious fanatics chastise and look down upon for being secular.
The liberal Jewish community, which is the engine behind Israel’s economy, should now insist that, and never rest until, a new basic law is enacted to codify the separation between state and religion that would unshackle secular Israelis from religious doctrine that often infringes on their private life. The law should also require that observant Israelis, who do not want to serve in the army for religious reasons, should instead be required to perform community service for two years to serve the nation, only in a different capacity than soldiers. This will not only benefit the communities who require such services, it is consistent with Jewish values to come to the aid of those in need and will also allow these young Orthodox Jews to acquire certain professional skills which they can use to earn a living and provide for their families.
To be sure, the observant community should have the right to live, just like the secular community, as they see fit and be provided with the necessary funds to run their institutions, provided that they contribute socially and economically to the welfare and wellbeing of the larger Israeli community. A basic law that enshrines the separation between religion and state will offer the only guarantee to prevent the continuing conflict between the two camps while preserving one of the main fundamentals of democracy.
Ending the occupation
Ending the occupation is sine qua non to the preservation of Israel’s democracy. Indeed, as long as Israel remains an occupying power and applies two sets of laws in the West Bank—one for Israelis including the settlers, and one set of military laws that govern the Palestinian community—Israel is not and will never be a true democracy. Successive right-wing governments have been systematically misleading and brainwashing the Israeli public to justify the occupation on the grounds of national security. They have been methodically portraying the Palestinians as an irredeemable foe while describing the occupation as central to keeping the Palestinians at bay and preventing them from ever establishing an independent state of their own.
Furthermore, successive Israeli governments have been promoting the notion that the Palestinians are bent on destroying Israel even if they establish their own state, while normalizing the occupation of the West Bank as if it were simply an extension of Israel proper. Eighty percent of all Israelis and 92 percent of all Palestinians were born after the occupation began in 1967. The occupation is dangerously eroding Israel’s moral standing and social fabric regardless of what kind of spins are put on it. It is not only destructive for the Palestinians, instigating militancy and endless violence, it has also fueled a rise in anti-Semitism as the ruthless occupation is being associated with the Jews. The Israeli occupation is violently explosive, and will only continue to be so if it continues. It dehumanizes not only Palestinians but Israelis themselves. It has and continues to precipitate instability both within Israel and the Occupied Palestinian Territories, and in the greater region.
The current Israeli government openly calls for the annexation of the West Bank, which not only makes a mockery of Israel’s democracy but leaves the Palestinians with no other option but violent resistance. Indeed, the occupation and the way Israel is treating the Palestinians is apartheid in the full meaning of the word. The multitude of Israelis who have been fighting to preserve the independence of the judiciary must fight with the same vigor, tenacity, and commitment to end the occupation if they really want true democracy to prevail.
To that end, the government must remain under unrelenting public pressure to create a path that would lead to the establishment of an independent Palestinian state. I propose that it should be carried out in the context of an Israeli- Palestinian-Jordanian confederation. (My entire proposal for the creation of such a confederation can be found in World Affairs Journal, Volume 185 Issue 1, SPRING 2022).
Establishing a constitution
One of the reasons behind the judicial crisis is that Israel does not have a written constitution, especially one that would require a supermajority (two-thirds) of the Knesset to amend any basic law and prevent any amendments by a simple majority, as was the case of the “reasonableness” bill which passed by a meager majority of 64 out of 120 members of Knesset. The actual vote was 64 to 0, since the opposition parties refused to participate in the vote.
Israel’s democracy as it is currently formulated lacks necessary safeguards and can be manipulated to conform with the ideological or religious leaning of the government at any given time. The constitution should rest on foundational provisions over which reaching a consensus is a must.
Given however the diversity of opinions, ideologies, religious beliefs, political leanings, and different visions about Israel’s future, it will be extremely difficult to reach a consensus on establishing a constitution. Nevertheless, Israel’s many basic laws can form the basis for a constitution, which can be built upon. To that end, representatives of all current political parties should convene on a regular basis and commit, from the onset, to continue working on drafting a constitution until they reach a consensus.
Some of the fundamental provisions of the constitution should obviously include judicial independence; separation between religion and state; comprehensive human rights regardless of race, color, gender, ethnicity, or religion; equality before the law; freedom of expression and the press; free and fair elections; and a clear definition of the legal prerogatives of the government, its obligation towards citizens, as well as the relationship between the military and the government. Ultimately, a constitution that encompasses all the above provisions will provide the necessary safeguards to protect and sustain democracy.
Reforming Israel’s electoral system
Much can be said about the inefficiency and intricacies of Israel’s electoral system. Israeli elections are largely fair and free but nevertheless there is a need for substantial reform. For the purpose of this article, it suffices to focus on one critical aspect of Israel’s electoral system. Any reforms should aim at reducing the number of political parties by raising the electoral threshold from 3.25 percent to perhaps seven or eight percent. This change alone would compel smaller parties who roughly share similar ideological and political leanings to merge and create a larger party, which would also help to reduce polarization.
But more important, it would prevent small parties from being kingmakers and having outsized power to form as well as precipitate the collapse of a government if their demands are not met. With fewer parties, each party would naturally gain a greater number of seats and will be able to form a coalition government without the need for a party of only four or five Knesset members, which under the current structure holds the government hostage to the narrow demands that serve the sole interest of such a party, even at the expense of the nation’s interests. This is happening under the current government, where Netanyahu is continuously forced to bend to the desires of Itamar Ben-Gvir, who often threatens to withdraw his six-member Otzma Yehudit party from the government unless the far-right party’s demands are met.
Moreover, the fewer the number of political parties in any coalition government, the fewer compromises will have to be made in order to avoiding settling on the lowest common denominators to reach consensus on any policy. For example, under the Lapid-Bennett government, the wide ideological differences between coalition partners meant that they could not agree on what to do about the Palestinian issue, so they decided not to address the conflict at all, as if it were a small, insignificant issue, notwithstanding its massive implications on the country and the region. This change alone would allow most governments to complete their four-year mandates and prevent frequent elections. During the past four years the country went through five elections, which is absurd to say the least. There is no doubt that this one change alone will dramatically improve the government’s functionality and further enhance its democratic underpinnings.
In conclusion, Israel has never faced the kind of social and political turmoil it is currently experiencing. The foundations of Israel’s democracy as a representative government—independence of the judiciary, equality before the law, social justice, religious freedom, freedom of press and expression, and protection of human rights—must be guarded with zeal.
These democratic pillars have largely been enshrined in basic laws and any tampering with these pillars betrays the very essence behind Israel’s creation as a national home for Jews regardless of their religious affiliation, country of origin, or gender, with equal rights for all its citizens, as guaranteed by the Declaration of Independence in 1948.