A Battle Zone?

By Prof Upendra Baxi

The recent extraordinary mass protests in Israel—which include labour unions, army reservists, diplomats, health-workers, academics and students—clearly mark and map its future democratic itineraries. After a brief moratorium for Passover, a recent reaffirmation of parliamentary will to pursue “reform” amendments display the determination of the extreme right wing coalition which has again reinforced massive public protests. 

Braving temperatures of 90 degrees Fahrenheit, tens of thousands held rallies across central Israel early last week protesting Prime Minister Benjamin Netanyahu’s finalisation process for the initiation of a Bill that would limit the power of constitutional judicial review of the Supreme Court. Indeed, the Knesset will now proceed with the same package of “reforms” which empowers the enactment of very harsh measures that will enable the political executive to design a  “legislative override” of unfavourable judicial decisions.

What passes or parades as “reform” is, in fact, a “Wild West” type jurisprudence of the planned demise of an independent judiciary. The so-called “reforms” include running a legislative veto over the Supreme Court’s decisions; the enlargement of the Judicial Selection Committee installing now a clear executive domination; constitutional judicial review; the new powers of reviewing the judicial invalidation of laws even by a simple majority of one in the Knesset. Further, ministers would not be required to obey the advice of their legal advisers—guided by the attorney general—which they currently must by law.

Already the power of the attorney general to pronounce a sitting prime minister as unfit for office stands curtailed—a move considered politically significant (as the incumbent is facing an ongoing trial on the indictment of fraud, corruption, and criminal breach of trust). Unchecked powers of the government are writ large in every way on the so-called “reforms”.

It is important to understand that Israel has no full constitutional document, but rather a series of constitutional installments! This stand was encapsulated by Basic Laws passed at various stages by the Knesset. In 1992, after a considerable contestation over a constitutional enunciation of human rights, a political compromise led to two basic laws—on Human Dignity and Liberty, and on Freedom of Occupation. Thus were buttressed substantive constitutional limits on the legislative powers. Three years later, the Supreme Court held that the Basic Laws have constitutional status—superior to ordinary laws and, therefore, it has the power to invalidate unconstitutional legislation. Thus, what has been called a mini “constitutional revolution” finally occurred.

The Fourteenth Basic Law declaring Israel as the Nation State of the Jewish People was enacted on July 19, 2018, declaring that Israel is the “national home of the Jewish people”. Among its 11 clauses, it deals with state symbols like the flag and national anthem, the official language, national holidays, the Sabbath, Jerusalem as the capital, etc. This Basic Law not merely triggered an intense public debate in Israel (the opponents naming it as “racist”, “shameful” and “disgraceful”), but also a constitutional challenge by 15 joint petitions upheld by Israel’s Supreme Court (in an extended bench of 11 Justices), because the Court has held itself out as a custodian of core human rights of dignity, human rights and equality guarantees. However, it rejected the petitions alleging that the 2018 Nation-State law as discriminatory against non-Jews.

Ten of the 11 presiding judges moved to deny the petitions, with Justice George Karra, the High Court’s only Arab, held, in a dissent, that some parts of the law are violative of Israel’s democratic nature and principle of equality by ignoring Druze and Arab citizens. 

Large weekly protests for over seven months, engaging hundreds of thousands of people and widespread in Israeli cities, cannot simply be regarded as the handiwork of opposition parties even when they stand to benefit from such popular action. Perhaps, a growing number of military reservists—the backbone of Israel’s armed forces—who are said to have refused to report for duty (causing concerns about the near future of Israel’s security) served as the last straw which led to an announcement in March of putting the reform plans till later. But that proved a temporary truce, without any sober dialogue. In fact, the cascading opposition to judicial reform plans have a wider endorsement from human rights groups, social movements and an active citizenry in the modern world’s first sustained rallying of citizens for the independence of the judiciary.

The protesting public needs a much closer study in terms of its class, gender, ethnic and religious composition. How the constitutional changes may affect the excluded and the marginalised is not fully known. And the categorical statements by US President Joe Biden hopefully encourage greater dialogue. Most recently, he has expressed (July 18, 2023, in the words of famed New York Times commentator Thomas L. Freidman) “respect” for the “enduring” protests in Israel which express the “vibrancy of Israel’s democracy” and his desire that the government will not “slam through a constitutional amendment” bereft of “semblance of a national consensus”.

It is widely recognised that we live in a “post-democratic” epoch (a notion first explicated by political theorist Colin Crouch in 2004) as a society which “continues to have and to use all the institutions of democracy, but in which they increasingly become a formal shell” and where the “energy and innovative drive pass away from the democratic arena and into small circles of a politico-economic elite”. Despite this emptying of democracy, the “protest publics” or “mass civic action”—as recently studied by three Russian sociologists Nina Belyaeva, Victor Albert and Dmitry Zeytsav (2019)—thrive everywhere, cutting across the divides of class, caste, ethnicity, gender and political ideologies. Protesting public create a “competition of discourses”, new “discursive coalitions” and “social space…by the reflexive circulation of discourse, and they also create an alternate poetic world”—from the Arab Spring to the Occupy Now movements and climate change protests (often referred to  as “Fridays for Future”).

Rather than being “beggars at policy gates” (as many political scientists describe some protest moments) protesting publics do impact legislative agenda in different ways and leave residues of justice for future alternatives. In any case, one hopes that greater constitutional wisdom and regard will prevail. Perhaps, then, the current Israeli experience may acquire a hue of “post-democratic” politics”. Even so, is it not a global sign for re-democratising democracy itself? Perhaps, the will of the people will prevail in this 75th year of the founding of the State of Israel.

As the great sage and Talmudic philosopher Emmanuel Levinas once said: “The ‘notion of truth….does not end the reign’ of “enrootedenss” (a primordial preconnection). Rather, it maintains “participation as a sovereign category of being” and as a “way of referring to the other”. Is this way to “unfold one’s being”, without at any point “losing contact with the other”, ever politically too late?

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer