This is the first of a two-part series explaining the history and context of the current protests and debates over proposed judicial reforms in Israel. The second part will discuss the current battles and events happening as a result of this history. Check it out here:
Recently, tensions in Israel have seemingly reached a breaking point as Israelis took to the streets to protest Netanyahu’s looming judicial reforms. This tension in Israel is very complex but by no means is this all about Netanyahu, his coalition, or even the legislative proposals the government is proposing. This is the result of problems that have gone back to the early years of the state of Israel and have been expanded due to changing demographics and a judicial structure that has overreached its intent.
In the 1950s, just after the founding of the state of Israel, the first Minister of Justice didn’t want the Knesset, the unicameral legislative body, to be too involved in the court system in order to have a completely independent judiciary. The founding members of Israel believed that the Knesset should not have any role in the Supreme Court. Therefore, they changed the structure of the judiciary whereby a committee of public officials, ministers, Supreme Court judges, and Bar Association officials chose their successors without any check or influence from the Knesset. At first, the courts were a relatively weak branch of government and the judges themselves believed that the courts should not interfere in politics, so this worked well. It would only step in when there was a clear, undeniable violation of the law.
Then, in the late 1970s, the center-right-leaning Likud party gained control of the Knesset for the first time. This led to a deadlock between the relatively secular and left-wing unofficial elite and the Likud government. Aharon Barak was appointed as a judge to the Supreme Court and he attempted to fix the problem by creating what are known as the “Basic Laws” of the Israeli judicial system. The open-ended Basic Laws are for “Reasonability, Human Dignity and Liberty, and Freedom of Occupation.” These Basic Laws began serving as a quasi-constitution as they were written in such a way that they could not be contradicted by other legislative measures. As a result, judges who became more political began using these laws to strike down or veto any legislation and government action with the only basis being “it infringes on human rights” or that they were “infringing on the basic laws of reasonability.” This allowed the secular, left-leaning political establishment in Tel Aviv to maintain its power despite a right-leaning leadership in Jerusalem.
Following the failures of the Labour and Mapai parties during the 1973 Yom Kippur War, the political left in Israel became all but obsolete. But, with the Basic Laws, if the establishment didn’t like a piece of legislation, the judges would be able to shut them down before it gained any traction. Also, because judges have appointments until the age of 70, and a committee appoints their successors, the Knesset had no say in appealing the court’s decisions.
In the executive branch, each department in the Israeli government has legal advisors under the direction of the Attorney General to head the legal departments of each Ministry. They are not political appointees, and all ministries and offices are subject to their advice. As a result, these advisors have become effectively a voice for the Supreme Court inside the government, influencing policy and, in some cases, vetoing policy as illegal. An example of this is when Prime Minister Netanyahu was indicted for corruption charges, the Attorney General, the legal advisor to the prime minister, attempted to declare Netanyahu as “legally incapacitated,” attempting to push him, the democratically elected prime minister, from office, twisting the law to achieve his goal when he was supposed to be advising Netanyahu on his policies using the law.
To put this into perspective, in the United States, the justices of the Supreme Court are nominated by the president and then confirmed by the Senate. They have lifetime appointments, but they have an overarching Constitution, historical writings, and precedent that helps them determine their rulings. This allows them to be chosen by the people’s representatives and to have an objective basis for deciding rulings even if they interpret these documents differently. As for legal advisors in each government agency, they are either politically appointed members of the Justice Department and confirmed by the Senate or are chosen by the head of the agency within his\her inner circle within the executive branch without Senate confirmation. Though, in theory, this means there is more political influence within these circles, it gives the representatives of the people the chance to surround themselves with those who will help push ahead their agendas and promises on which they were elected and who will give them the whole truth without fears of ulterior motives. In practice, as we have seen this can be a bit more complicated.
In Israel, the judges of the Supreme Court have appointments until the age of 70 and are chosen by a committee of two Knesset members, two members of the Bar Association of Israel, three Supreme Court judges, and two cabinet members, one of which is the Minister of Justice. They have no objective Constitution-like document to refer to although there are “Basic Laws of Reasonability and Human Rights” which have become a quasi-constitution that allow judges to object to a rule based on “Reasonability” which leaves much more discretion up to the judges. Each minister has a bureaucratic “Legal Advisor ” which heads the legal departments of each agency and provides legal advice to the Minister, no matter the party in charge. These legal advisors are overseen by the Attorney General who is the main legal advisor with the Minister of Justice to the Prime Minister. The Attorney General is the civil servant legal advisor and the Minister of Justice is the politically appointed legal advisor. Though this limits political bias and keeps the judiciary independent, there is limited oversight and accountability from the people whether that be through elected representatives or elections themselves.
At the same time, there has been a demographic change happening throughout Israel. The population is almost entirely conservative to one degree or another. At the beginning of Israel’s time as a country, the Orthodox Jewish communities in Israel were a relatively small part of the population, less than 10% of the population. But as many Orthodox Jews have an average of six children per family, that number has been growing quickly, causing many social issues throughout the country. First, they have a higher rate of poverty, unemployment, and reliance on social welfare as they are committed to studying the Torah and not working, leaving the secular population to have to pay higher taxes. Second, Orthodox Jews do not serve in the military draft as negotiated by the first prime minister, David Ben Gurion, whereas the secular have to serve in the mandatory draft, meaning that now almost half of Israel’s eligible population is not drafted into the military today. Orthodox Jews are also the population that is in favor of settlements in the West Bank and is the main participant in the current political coalition. This has created resentment and division between the secular and the religious communities in Israel.
As we will see in the next part of the series, these judicial structures and changes in the social fabric of Israel have led to significant questions regarding the future of the Jewish state. These questions include the influence of religion in the government, how to make the judicial system fairer but still independent, and how the changing demographics will impact Israeli politics and the U.S.-Israel relationship.