Portside

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 review of laws passed by the Knesset. And with that, Israeli society moved irrevocably further from the values of democracy, equality and tolerant Judaism and frighteningly closer to autocracy and illiberalism.

Following the vote, the coalition celebrated itself on the Knesset floor with smug selfies. The market and the Israeli shekel immediately began to fall, and the country 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, blocking major transportation arteries, waving the Israeli flag, screaming “shame on you!” and singing the pro-democracy movement’s newest anthem: “If there is no equality, we will topple the government; you’ve picked the wrong generation to tangle with.” The police responded violently, using water and skunk cannons, smoke bombs, clubs and horses to disperse the demonstrators. The chaos continued throughout the night.

Until Monday, if the court determined that the government had used political, irrelevant or arbitrary considerations when making its decisions, or if a decision was patently discriminatory or anti-democratic, the High Court, if petitioned, could strike the decision down under the reasonableness clause or even reverse it.   

No longer. Now, the government can do pretty much do whatever it pleases. 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 that, given Deri’s long history of corruption convictions and because by accepting the appointments he was violating a plea deal he signed in his most recent corruption trial, which included Deri’s promise to take himself out of politics, the appointment was unreasonable.

“But we were elected and the judges are not!” the politicians screeched. “Who are these judges, a group of meddling, Ashkenazi elites, to decide, willy-nilly, to reverse our decisions, on the basis of their own interpretations of reasonableness?!  We, not the Supreme Court judges, were elected by the people.”

They were hardly persuaded 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 the court has actually rejected 52 of the 64 petitions it received to strike down a government appointment, and of the other 12, only seven applied the reasonableness standard.

With no judicial oversight, this self-serving 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 is hardly surprising that Netanyahu, currently on trial for fraud, breach of trust and accepting bribes, is leading the effort to weaken the judiciary.

Israel’s Supreme Court has been the protector of the rights of minorities and the disenfranchised, and of democratic values. But now, Israel’s most 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.

And so when Settlements and National Missions Minister Orit Strook makes good on her promise to present legislation stipulating that doctors have the right to choose what kind of patient they are willing to treat; or when Finance Minister Bezalel Smotrich pushes a law, as he has said he might, that Jewish and Arab women should not give birth next to each other—there won’t be much we can do about it. Or when the coalition parties propose legislation to allow private businesses to deny their product or service selectively to some customers and to allow medical personnel to withhold treatment, including fertility treatments for unmarried women and LGBTQ couples, if it goes against their religious convictions—there won’t be much we can do about that, either.

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. Violators could be slapped with a half-year prison term and a fine of up to 10,000 shekels ($2,867).

I know that the Netanyahu coalition won in the November elections, and that it has a democratic right to govern this country. But it doesn’t have the right to use the democratic process to destroy democracy.

Even after thirty consecutive weeks of protesting, I should not have been surprised that the law was changed.

After all, the 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 warnings by 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.

But I did think Netanyahu would listen to his own constituencies. Blitzing the legislation through, the coalition members repeatedly proclaim 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 reforms continue as planned. About 30 percent of those who voted for the Likud, Netanyahu’s own party, are against it.

And I didn’t really want to believe that Netanyahu, who has branded himself as Mr. Security, would disregard 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; or belittle the statement by 1,142 Israeli Air Force reservists, including over 400 pilots, that they will suspend their volunteer reserve duty; or ignore warnings by the military’s chief of staff that the judicial overhaul is splitting the military and that Israel’s existence could be imperiled.

Yet in response, arrogant as always, Netanyahu said, “The country can get by without a few [Air Force] squadrons, but not without a government.”

The acrid smell of sulfur from the skunk-mobiles is still wafting through Jerusalem. Dozens of demonstrators were wounded and dozens more were arrested.

Trying to gain some control, 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 that even fewer believed him. I take National Security Minister Itamar Ben-Gvir at his word when he says that “the reasonableness clause is just the tip of the iceberg…the appetizer to build up the appetite.” I believe that the coalition’s real goals are to put an end to Netanyahu’s criminal proceedings, entrench the privileges of the ultra-Orthodox, and turn our country into a Messianic theocracy.

Many of the protestors I encountered wore T-shirts with quotes from the Book of Eicha, also known as the Book of Lamentations, 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—the 9th of Av will begin tomorrow (Wednesday) night. And 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.

Trying to gain some control, 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 that even fewer believed him. I take National Security Minister Itamar Ben-Gvir at his word when he says that “the reasonableness clause is just the tip of the iceberg…the appetizer to build up the appetite.” I believe that the coalition’s real goals are to put an end to Netanyahu’s criminal proceedings, entrench the privileges of the ultra-Orthodox, and turn our country into a Messianic theocracy.

Many of the protestors I encountered wore T-shirts with quotes from the Book of Eicha, also known as the Book of Lamentations, 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—the 9th of Av will begin tomorrow (Wednesday) night. And 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.  

[Eetta Prince-Gibson, who lives in Jerusalem, was previously Editor-in-Chief of The Jerusalem Report, is the Israel Editor for Moment Magazine and a regular contributor to Haaretz, The Forward, PRI, and other Israeli and international publications.]

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