By Ben Murane, NIFC Executive Director
When the recent Israeli elections were first announced, we knew they would be important. In hindsight, we see that they may have the most consequential results in Israel’s history.
From the outset, sitting Prime Minister Benjamin Netanyahu knew that if he won, he would be in a bind: he would lose his seat to the looming indictments against him, or pay handsomely for coalition partners that would help him escape it. To the center, the Blue and White Party was unlikely to grant such immunity under any conditions. To the right, the price for an immunity law would be further lessening of Israel’s democracy.
From the same coalition partners that first drafted the Nation-State Law comes the next “court override” bill. Among them are religious-nationalist and ultra-orthodox sectors, who oppose secular limits on religious law. And several center-right parties oppose the liberal-leaning rulings of the Supreme Court. Over the past decade, these parties have proposed one version or another of a law that would undermine or eliminate an independent judiciary.
Unlike Canada and the US, Israel lacks a constitution. Instead constitutional law rests in a series of “Basic Laws.” Constitutional law is purposefully hard to change; the Basic Laws are relatively easy to amend. Throughout the history of Israel’s Supreme Court, its justices have known that unpopular rulings against popular laws could result in populist backlash.
Steadily over time, polarization has growth over the court’s role. According to the 2018 Israel Democracy Index study, one’s trust in the country’s democratic institutions closely correlates to one’s political beliefs: liberals support the Supreme Court, conservatives oppose it. On the Left and among Centrists, trust in the Supreme Court ranks at 88% and 76%. But on the Right, trust reaches only a lowly 50%.
Polled specifically about introducing a court override clause, a worryingly low number of Israelis opposed it: only 56%. Even worse, the majority who oppose it are likely not voters of the incoming governing parties.
Israel is not the only country where the courts are under attack: Turkey, Hungary, Poland, and Brazil have or are considering similar measures. Populism is growing around the world and many democratic countries are facing movements aimed at undermining a free press, an independent judiciary, and other checks and balances.
Exactly this time last year Canadian Supreme Court Justice Rosalie Abella spoke bravely on the topic of threats to Israel’s courts from a podium at Hebrew University:
“What is most alarming to me about this ongoing attempt to delegitimize the reputation of the judiciary is that it is being done in the name of patriotism. This, to me, seems somewhat perverse. Patriotism means upholding the values on which your country is based. Those values in Israel are Jewish and democratic. They include respect for human rights, tolerance, equality, and dignity. That is what being patriotic means. Yet in championing those values, the Israeli judiciary finds itself demonized by some for being independent from political expedience and immune to political will.
“Independent judges who are not politically compliant are not anti-democratic, they are doing their job; those critics, on the other hand, who think patriotism means doing only what politicians want are the biggest threat to Israel’s values, because they misconceive democracy as majoritarian rule.”
In all likelihood, the legislative debate over the next Court Override Bill will be tough. We do not yet know the details and we can hope that its first draft will be narrow and limited. The opposition parties can be trusted to object, but they are formally out of power.
Like when the Nation-State Law passed, it will be up to Israeli society to raise their objections. Coalitions from every sector will need to mobilize out of self-interest: without the court, who will prevent the whims of whatever majority from stampeding the rights of others?
At the international level of the NIF family of organizations, preparations have been underway to gird civil society for the struggle to come. Israel’s leading progressive organizations, funded by the NIF global family, will be hard-pressed in the coming year. Shatil, our operating arm, will again be a driving force of activating coalitions from north to south. And Israel’s supporters abroad like you will undoubtedly be called upon to raise your voice.
The work of the New Israel Fund of Canada is crucial at this time — the advancement of Israel’s democracy is NIFC’s founding purpose. If you too are worried about Israel’s democracy, then we are your home to help save it. We must thank every contributor – and welcome every new supporter – at this very crucial time.