Fight over Israel’s judiciary as Palestinians look on

Protests continue against PM Netanyahu’s moves to weaken the Supreme Court, as violence escalates in occupied West Bank.

Israelis protest against Prime Minister Benjamin Netanyahu's new right-wing coalition and its proposed judicial reforms to reduce powers of the Supreme Court, in Tel Aviv, Israel January 21, 2023. REUTERS/Corinna Kern
Israelis have protested against Prime Minister Benjamin Netanyahu's new right-wing coalition and its proposed reforms to reduce the powers of the Supreme Court [Corinna Kern/Reuters]

Jerusalem – Every Saturday evening for the past month, thousands of Israelis have taken part in anti-government protests across the country.

Their handmade signs reveal the focus of the demonstrations: “Democracy for everyone” read one, in Hebrew and English. Others spelled out the participants’ support for the Israeli Supreme Court, with its independence under threat from the far-right government of Prime Minister Benjamin Netanyahu.

And yet, despite the growing movement against Netanyahu’s government, there had been talk of postponing the most recent protest, held last Saturday.

Violence in the occupied West Bank and east Jerusalem has reached fever pitch, with an Israeli raid on Jenin killing nine Palestinians last Thursday, and a Palestinian gunman killing seven Israelis in an East Jerusalem settlement on Friday, followed by further killings of Palestinians by Israelis, and attacks on Israelis carried out by Palestinians.

The Israeli government has attempted to create a rally-around-the-flag effect in the wake of the violence, and push through legislation that has been labelled as “collective punishment” targeting Palestinians.

What the return to the forefront of the Palestinian occupation will have on the protests remains to be seen.

Some demonstrators, including Palestinians, have taken the opportunity the protests have presented to call for an end to the occupation, and denounced government policy towards Palestinians.

But ultimately, the focus of most of the protesters has been on the debate over the Israeli judiciary, Netanyahu’s own legal troubles, and the growth of right-wing religious movements within government.

That has frustrated many Palestinians, who, while agreeing with the need to push back against Netanyahu, refuse to whitewash Israel’s political system.

“Note that very few [Palestinian] Arabs participate in the protests, because the protests are only about Jewish democracy not substantive democracy,” Ahmad Tibi, a Palestinian member of the Israeli parliament, and the head of the Ta’al Party, told Al Jazeera. “The demonstrators demand not to harm the courts, not to harm the legal advisers, not to harm the committee to appoint judges. But they don’t call for equality between Jews and Arabs. There is no such call by the protesters. Or to end the occupation or against the Jewish Nation State Law or against racism.”

“Nevertheless, I repeat that we oppose the judicial revolution of the Netanyahu government.”

Overhauling the judiciary

The focus of the protests has primarily been on the government’s plans to overhaul the judiciary.

The highly controversial plan unveiled in January by justice minister Yariv Levin includes a bill that will radically limit the Supreme Court’s power to overturn any Knesset (parliament) legislation and government decisions, an “override clause” enabling a simple majority of one vote to relegislate, a bill to change the selection process for judges by effectively giving it to the government, and a bill preventing the court from using a test of “reasonableness” to gauge Knesset legislation and government decisions.

Levin has also proposed that legal advisers in government ministries be personally appointed by government ministers.

The changes are necessary, according to Levin, because the Supreme Court was harming democracy, as it was “interfering” in government decision-making and parliament legislation, which harms the government’s ability to govern.

“We go to the ballot box and vote but time after time, people we didn’t elect make the decisions for us,” Levin said.

The proposals have been opposed by liberal and left-wing Israelis, as well as some within the religious camp.

At one recent protest, Tom Arad stood among a group of religious Jewish men wearing kippahs on their heads and women wearing long skirts.

“I went to demonstrate because I care about democracy and I care about human rights,” Arad said. “I’m afraid that a radical current will take over the country like in Hungary and Poland. I’m very afraid of religious coercion in the country and harm to the citizens’ freedoms.”

According to international and constitutional law expert Professor Amichai Cohen, the government’s proposals will turn Israel into an autocracy, with power in the hands of a few.

“In Israel, there are very few people who hold the power,” said Cohen. “They are the heads of the coalition parties, [normally] between five to eight people. In this government, they are seven people. Once they agree, there is no other political power that can stop them.

“We don’t have two [legislative] houses, we have no president with veto power, our local governments are very weak compared to other democracies, we are not part of a supranational organisation,” Cohen added. “The only limitation of political power in Israel is judicial review … [This issue] goes to the heart of the Israeli democracy. Absent the authority of the court to invalidate legislation there will remain no limit on the power of this small group of people.”

The Israeli opposition, which lost November’s elections, the fifth held in less than four years, says the main reasons for the legal overhaul were the personal interests of two of the government’s members, led by Netanyahu.

He is on trial for corruption, a charge he denies, but that could disappear if the government has more control over the judiciary.

Meanwhile, one of Netanyahu’s coalition partners, Shas party leader Aryeh Deri, hopes to get his jobs back as interior minister and health minister, after he was removed from them last month at the behest of the Supreme Court over a suspended prison sentence.

No love lost between Palestinians and the judiciary

The characterisation of the Supreme Court as a challenge to Israel’s right has been pushed back against by pro-Palestinian advocates, who point to the many instances where the court has failed to rule in favour of the human rights of Palestinians.

For example, the court allowed the Israeli military to fire lethal weapons at Palestinian demonstrators in Gaza during the Great March of Return in 2018 and 2019, and has also ruled in favour of the displacement of Palestinian communities in the occupied West Bank.

“The judicial system in Israel, including the Supreme Court, has not usually given aid to Palestinians on both sides of the Green Line … on cardinal issues,” said Tibi. “For example, the Supreme Court legalised the occupation, expulsions, targeted killings, settlements, the eviction of the people of Khan al-Ahmar. And it legalised the Jewish Nation State Law, [and] the (community) Admissions Committees.”

“So there isn’t a lot of empathy or a fateful connection between the Palestinian minority in Israel and the Supreme Court and the judicial system.”

But, as Tibi and others argue, the possibility that the Supreme Court is neutered puts Palestinians in Israel and the occupied territories in greater danger, with nothing stopping the government from passing laws that could harm human and civil rights.

“We oppose the [judicial] reforms because, in the end, it is possible that the Supreme Court will be the last resort for minorities and weak groups on certain issues,” Tibi said. “It doesn’t always help, but it’s the last resort.”

If the judicial revolution is passed, Netanyahu’s opposition says, there will be no stopping the government from passing laws that harm human and civil rights.

And with a government composed of ultra-Orthodox Jews and ultra-nationalist pro-settlement Jews, this would allow for religious coercion and harm to minorities, such as Palestinian citizens of Israel and the LGBTQ community. It could also allow the government to approve the annexation of the West Bank.

“Weakening the power of the court in and of itself is not the point,” said Cohen. “The point is the implication of centralised political power having no limits. The ultra-Orthodox will promote their agenda. The extreme right wing will promote its agenda.”

Indeed, there are already plans for a bill aimed at disqualifying Arab parties and a bill to ban bringing certain foods into hospitals during the Passover holiday and to stop public transport from operating in Tel Aviv on the Sabbath.

Net positive

If the demonstrations do not have an effect on Netanyahu, many hope the economic threats will.

The chief of the Bank of Israel has reportedly warned Netanyahu that any overhaul to the judiciary will hurt the economy, scaring away investors and harming Israel’s credit rating.

Meanwhile, some investors have already announced that they are moving their money out of Israel.

While this has left Israeli politics in an uncertain position, Cohen believes that the battle over the judiciary has had a positive effect.

“The opposition in Israel after the [November] election was in turmoil,” said Cohen. “They had no ideology. ‘Just not Bibi’ is not an ideology,” said Cohen, in reference to Netanyahu’s nickname and the slogan that united right-wing and left-wing parties in previous elections.

Cohen also argues that the opposition to Netanyahu’s government, and the protest movement that it has engendered, has pushed more Jewish Israelis to rethink their position towards Palestinians, despite the previous centrist government’s regular raids in the West Bank, in which more than 170 Palestinians died, as well as a brief assault on Gaza in August that killed at least 49 Palestinians

“If you look at Israel in terms of your position in regards to the Palestinian issue then it’s clear the right wing has a political majority,” Cohen said. “But … once you describe these dangers [of right-wing policy], people say, ‘We don’t want the most extreme parties to promote their agendas. And if your identity is liberal democratic and if you don’t want to live in a dissonance between your position in regards to the general democracy and [towards] the Palestinians then [the latter] will also move. Political identities are dynamic. It makes people rethink their positions.”

However, Palestinian political analyst and vice president for advancement of Birzeit University, Ghassan Khatib, argues Netanyahu’s ability to play on hatred for Palestinians to increase his popularity reveals the reality of Israel’s domestic politics.

“The internal tension between the different Israeli political groups and parties and the fierce political competition and confrontation within Israel is reflecting itself in attempts to show tough Israeli positions vis-a-vis Palestinians as a way of increasing his popularity inside Israel,” Khatib said.

Source: Al Jazeera