Protesters outside the Knesset in Jerusalem, March 27, 2023 (Photo: Getty Images)
HERE’S A DELIGHTFUL ANECDOTE from the legendary Israeli author Ephraim Kishon: “When some years ago Premier Ben-Gurion resigned and retired to a kibbutz named Sde Boker, he almost wrecked the collective… What happened was that B.-G. flatly refused to enjoy special privileges. When he declared that he would not eat the diet his doctor had prescribed, but only what all other members were eating, the whole kibbutz had to go on a saltless, protein-starved diet.”
There’s little that seems unprecedented about politics when seen from the right historical perspective. At a time of political turbulence in both the world’s largest and most powerful democracies centred partly on the judiciary, what had been happening in the Middle East’s only real democracy till earlier this week was called “unprecedented”, which maybe it was, as well as a “social rupture” that would be difficult, if not impossible, to heal.
The fact is, the judicial reforms that Benjamin Netanyahu’s government—steered more by far-right coalition partners than he had promised—remains in pursuit of (despite the postponement announced on Monday, March 27), have been in the pipeline for years with almost all main parties on board earlier. There are interesting parallels with India. But there are also significant differences. To return to Israel for the moment, why did half the country explode in anger, shutting it down? Would it have been different if someone else at the helm had been seeking the same reforms?
The case, as made by Netanyahu’s detractors, is that Bibi is forcing the country to swallow a bitter pill because his doctors prescribed it for him. What’s not remarked upon with equal promptness is the longstanding understanding in the political class that Israel’s judiciary has become too powerful for everyone else’s good. But Netanyahu, Israel’s longest-serving prime minister who returned to power after a year-and-a-half’s break last December, is on trial. He is an indicted leader who can’t hold any ministerial portfolios apart from the premiership. Why else would he time his push for the judicial reforms now, if not to benefit himself? Actually, Netanyahu had to sign a deal that he would have no part in the drafting and legislating of the reforms to regain the premiership—a deal the attorney general (AG) said he had broken, thereby disqualifying him from office because of the conflict of interest. But then, the government had already pushed a vital reform through that took away the AG’s power to pronounce a sitting prime minister unfit for office.
Then there are the “nasties”. In his present avatar, Bibi heads the most rightwing and overtly religious government in Israeli history. The settlers, and the far-right Otzma Yehudit led by Itamar Ben-Gvir, the serially troublemaking national security minister, as well as the Religious Zionists led by Finance Minister Bezalel Smotrich, among others, have never been fans of the Supreme Court of Israel given the court’s history of ruling against settlers, most notably on the 2005 unilateral withdrawal from Gaza and a string of more recent ‘interventionist’ judgments that seemed to come to the rescue of West-Bank Palestinians and Israeli Arabs. But one of the main brains behind the reforms is Yariv Levin, Netanyahu’s deputy prime minister and minister of justice who’s a member of Likud which, today, is at the left-end of the coalition in power. On Sunday, March 26, Netanyahu sacked Yoav Gallant, the Likud defence minister who had spoken out against the reforms, warning of a great risk to national security given the threat from reservists (whom the Israel Defense Forces heavily depend on) to not report for duty and deployment. Gallant’s dismissal catapulted the months-long protests into a siege of the Knesset and shutting down of airports, railways and ports the next day, by the end of which Netanyahu had reached a deal with Ben-Gvir to delay the reforms and also preserve his government.
If all that sounds unfamiliar from an Indian perspective, let’s look at the finer print. (Netanyahu recently claimed before Piers Morgan that Israelis are ignorant of that very fine print, not recognising that nothing is particularly new and that some of the reforms are already in effect. There’s some truth to this.) Broadly, the reforms are: One, curbing the Supreme Court’s power to review or reject laws, with a simple majority in the Knesset enough to overrule the court. Two, increased representation of the government on the committee that appoints judges (from an overwhelming majority, the government has since climbed down to a single-vote majority). And three, no obligation on a minister to obey the advice of their legal counsel, under the AG, as still required by law.
An all-powerful judiciary that appoints itself. A highhanded government bent on hurting democracy. An opportunistic opposition forgetting its own members were advocates of judicial reforms. Allegations and counter-allegations most Indians would be familiar with. But the scripts diverge beyond these points
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Thus, Israel’s judiciary appoints itself. Sounds familiar? Unsurprisingly, the heart of the matter is that second reform which, Netanyahu’s critics say, would be used by the government to appoint judges who would be predisposed to look at Bibi favourably in his continuing legal battles. Netanyahu countered by taking the moral high road: instead of calling the proposed reforms the death of Israeli democracy, they should be approached the other way round. The judiciary, reportedly the most powerful of the three wings of state, is unrepresentative because it’s unelected and it increasingly pronounces on matters of government, security, etc that are not its lookout. Thus, the legislature should have some control over who the judges are and what they deal with. In other words, the judicial reforms are an attempt to course-correct, if not outright rescue, Israeli democracy. And, argues Netanyahu, that’s exactly what people voted for when they gave Likud 32 seats last November.
An all-powerful and allegedly increasingly interventionist judiciary that appoints itself. A highhanded government bent on mortally wounding democracy. An opportunistic opposition conveniently forgetting that its own members had all been advocates of judicial reforms till the other day. Allegations and counter-allegations most Indians would be familiar with today. But the scripts diverge beyond these broad similarities. For one, India has the world’s longest written Constitution while Israel doesn’t have a written constitution, granting the court a far wider latitude that has widened over time. A big difference, notwithstanding what’s seen as the Indian judiciary’s recent attempts at “rewriting” the Constitution. Then again, tiny Israel is in many ways as vocal and chaotic a democracy as India, although a country’s embassies joining an anti-government strike is an extreme event. But these protests cannot be isolated from the global context of weeks of protests in France, Argentina, Australia, New Zealand and elsewhere. Liel Leibovitz writes in Tablet: “Something is definitely wrong here, but it’s not the Israeli judiciary, or pension plans [France] …If you take a sober look at these gatherings, you’ll see that they’re all about the same thing—which is not what any of them individually claim to be about. Instead, they’re being driven by a global drought in basic human connection, leading to too many people seeking a hit of pure purpose and belonging, and a fully automated network to activate it all.”
Be that as it may, there’s another important difference: Israeli leadership at the top is atrophying in a way it’s not here. Netanyahu, the greatest survivor of Israeli politics, may have run out of room for manoeuvre. Anshel Pfeffer, a biographer of Bibi, recently told Patrick Kingsley, the Jerusalem bureau chief of the New York Times: “He’s [Netanyahu] the magician who always pulls a rabbit out of his hat. Now he’s finding it harder and harder to find any rabbits.” Netanyahu implies the reforms, and thus the protests, aren’t really about him. But that’s where he’s got it wrong. He needs a rabbit by summer.