Israel Is in Turmoil

The past few months have seen Israel descend into a period of unprecedented anarchy triggered by the government's plans for judicial reforms. Day after day, tens of thousands of protesters have taken to the streets, blocking major highways, starting fires on main roads, and even approaching the Prime Minister's private residence. Banks and private businesses including McDonalds, Fox Clothing, and the Big shopping mall chain shut down in solidarity, as did Israel’s largest workers' union, the Histadrut. Even Ben Gurion International Airport stood with the protestors and cancelled scheduled flights.

The situation has caused fears of civil war. Footage of Tel Aviv's police chief being cheered by a crowd of anti-reform protesters sparked rumours of a coup backed by the army's revered pilots and hundreds of IDF special force members who have announced their refusal to attend a training exercise. With these refuseniks, a dangerous red line was crossed, and when defence minister Yoav Galant failed to quash the IDF rebels, he was dismissed. With no end to the crisis in sight, Benjamin Netanyahu addressed the nation:

“Citizens of Israel. The right to demonstrate is a fundamental democratic value, however, freedom to demonstrate is not freedom to bring the country to a halt—the person who said this 20 years ago was the former President of the Supreme Court; it was correct then and it is correct today.” 

Netanyahu strategically chose this quote to bring attention to Aharon Barak, the ideologue whose progressive vision is threatening to tear apart the Middle East's only democracy. To most outside Israel, Barak is a relatively unknown figure. However, during the 1990s, he transformed the Supreme Court (Bagatz) into the highest power in the land, above even the democratically elected Knesset. This has led to a situation where the high court holds unprecedented power to overturn any government decision, making elected politicians effectively irrelevant. 

“In 1995 the 'Bagatz party' was born,” explained Knesset member Simcha Rotman, author of The Ruling Party of Bagatz. “That year, Barak effectively notified Israel that it now had a constitution … Very few paid attention at the time but over the years came to the realisation that Israel has a constitution whose master is not the elected Knesset, but the high courts, and that any law passed by the Knesset can be overturned by the courts. It is an undemocratic state of affairs that renders elected politicians irrelevant.”

“This has been Israel’s reality for decades and it has to change” stressed PM Netanyahu. “No other state on earth allows a court to interfere with army, economics and budget decisions … In a democracy you have checks and balances between the three branches of government, the legislative, the executive and the judicial … in Israel over the last 20 years, that balance has been taken off the rails.” The Judiciary became all-powerful, he stressed, “it can nullify any government decision or appointment, intervene in military matters including Israel’s battle against terrorists and in taking gas out of the sea that cost billions of dollars—all these things are unacceptable.”

Barak’s Legal Revolution

At the heart of the proposed reforms is Barak's Human Dignity and Liberty Bill, passed in the Knesset in 1992. A revolutionary law, it went largely unnoticed at the time and passed with less than half of the Knesset present. This is of significance, argues Justice Minister Yariv Levin, who is spearheading the reforms: “Knesset members were told that this is a law of no significance, and unlikely to bring about any change, so it passed with just 32 (out of 120) MK's voting in its favour.” Some, however, did grasp the true magnitude of the law and even warned of the dangers that would arise from it.

“With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation,” wrote Hillel Neuer at the time, “the power of the Israeli judiciary has expanded dramatically to include the ability to strike down Knesset legislation, that in the Supreme Court's opinion violates normative human rights guarantees.” The noted human rights lawyer went on to predict that “the day is not far off when laws passed by the Knesset will routinely face the review of a Supreme Court, charged with the duty of protecting an entrenched set of superseding legal norms.” Neuer was spot on.

“Once this law passed” noted Levin, “Barak decided on his own accord, in a step that has no equivalent anywhere in the world, to determine that this is a constitution and that the existing basic laws are now the constitution, and furthermore, that he and his fellow judges now have the right to dismiss any laws passed by the Knesset.”

Barak's decision to interpret the Basic Laws as Israel's constitution has alarmed many, including Richard Posner, a judge on the United States Court of Appeals. “Only in Israel,” he stated at the time, “do judges confer the power of abstract review on themselves without the benefit of a constitutional or legislative provision.”

Years later, in 2010, Aharon Barak's law would be the centre of Elena Kagan's US Supreme Court confirmation hearings. “Here's what judge Barak said," Lindsay Graham told nominee Kagan, "the judge may give a statute a new meaning, a dynamic meaning that seeks to bridge the gap between law and life's changing reality without changing the statute itself, the statute remains as it was but its meaning changes because the court has given it a new meaning that suits new social needs.”

When asked “What the hell does that mean?" Kagan replied, "I think it means that the court can change a statute, and I think that that's wrong." Relieved, Graham noted that the law "is so nebulous and so empowering to a judge, it would make an elected official like me feel very worried that the judge doesn't understand the difference between going out and getting elected to office and reviewing policies made by elected officials." 

The Closed Club

The main reform changes proposed by Prime Minister Netanyahu and supported by Simcha Rotman are as follows: first, the introduction of an override clause to limit the Supreme Court's power to nullify laws passed by the Knesset. If a majority of 61 out of 120 MKs vote in favour, the Court's decision could be overridden. Second, the cancellation of the reasonableness clause which prevents the Supreme Court from overruling government laws if they are deemed to be 'unreasonable'. And third, changing the judicial appointment process to one that is selected by elected officials instead of the current system, which is self-appointing. Netanyahu stated that “in most democracies, judges are chosen by elected officials.” This does not compromise judges’ independence, according to Netanyahu, referring to the recent example in the United States where the former president appointed some conservative judges who ultimately voted against him. Rotman agreed and claimed that the current self-appointing system has become something of a “closed club” where friends and even cousins are appointed as judges. 

Rotman's words bring to mind the 2005 nomination of the late Professor Ruth Gavizon—which faced rejection by Aharon Barak on the grounds that her agenda was not befitting of the Supreme Court. Gavizon believed that the people should be granted the power to decide major issues through the representatives that they democratically elect, rather than allowing an unelected court to determine them. Since then, the Supreme Court has stepped into a range of areas—from immigration to the route of the separation fence to citizenship policies, budgetary preferences, and more—which appear to align with Gavizon's views. In response to the criticism around judges' independence, Rotman has detailed a set of reforms—such as judges being able to serve up until the age of 70, assuring their salaries with legal protection, and ensuring that the politicians have no power over disciplining them—which aim to prevent the influence of politics. However, the question was then posed of what happens if the government increases the number of judges from fifteen to thirty, in an attempt to gain control of the court. Rotman claimed that the reforms have limited the number of appointees so that the coalition cannot exceed two.

The Enlightened

Levin is set to cancel the "reasonableness clause," to stop the Supreme Court from overriding decisions purely on the grounds of reasonableness. Where one side sees reasonableness as a disturbingly vague measure that grants the court excessive judicial scope, others assert that it is necessary if the court is to overrule corrupt or ridiculous government laws. A recent example of the reasonableness test in practice is the dismissal of Arye Deri's appointment to the Knesset, in which the High Court determined that Deri's case represented an extreme and unusual situation and that his history of criminal offences justified the clause's application.

To Levin, reasonableness allows a progressive, radical left court to impose its globalistic ideology on people: 

"Take for example the legislations concerning illegal immigrants. The government passed laws to help South Tel Aviv residents whose lives are made hell ... their neighbourhood is crime-ridden due to high concentration of illegal African migrants. Some believe that the residents must be helped, others that these are refugees and we must help them, but the court simply dismissed the government's legislations, and put its own values above those of voters', and that of the old lady who is afraid to leave her home—what the court is saying is that even though you acted legally … I will dismiss it because I consider it unreasonable—I am the reasoned person, what Barak called 'the enlightened'. When a person says, condescendingly, 'I am above you', and dismisses the lowbrow voting masses, we have a problem.”

Opposers have argued that these reforms are designed to help Netanyahu, who is facing corruption charges, to which Levin replied: "I have been pushing for these reforms for over 20 years, long before Bibi's trial had even started."

Some raised fears over government-appointed judges making ridiculous, discriminatory decisions such as cancelling the Pride parade or "killing all red-headed people." Such a ridiculous scenario has zero chance of happening, responded Levin: 

"If a decision is made or a law is passed 'that discriminates, that is illegal, that did not follow the correct procedure, the courts would still have the power to strike it down'. The reforms will stop the insane situation in which a decision is made legally, that is not discriminatory … and the judges say, you were elected, but we'll choose for you—this is not democracy."

“Why don't newspapers reflect the reality of these minorities?" Levin asked at a recent panel, referring to the plight of South Tel Aviv residents. Waving a copy of the daily newspaper Yediot Achronot, to show the anti-government front page spread, he bashed mainstream media for instilling fear in people: "The media ignores the views of pro reformers," he asserted, "people who have yearned for the judicial reforms for decades, and who granted the government a solid 64 mandate majority."

Levin's sentiments were echoed by the Labour Party's Haim Ramon, who spoke of "unprecedented brainwashing against the reforms" with warnings of a looming dictatorship, the demise of LGBT rights and the economy. "People genuinely felt that their way of life is under attack and the sky is about to fall," added the former Justice minister, "there was real panic." Take for example the former head of the Bank of Israel who spoke against the reforms, said Ramon: "He is not a judicial expert of course, but imagine sitting next to a fire safety expert at the cinema and he believes that a fire is about to break out, will you not escape to save your life?"

Israel is the Indian reserve of the Jews

After weeks of non-stop anti-reform demonstrations, the Right in Israel has woken up—hundreds of thousands have marched in a show of support for Netanyahu, chanting "The people demand a judicial reform." Online and on the ground, the Right is organised and undeterred, currently planning the One Million March on the 27th of April, right after Independence Day. 

No longer turning the other cheek, the Right sees the battle over the reforms as a fight against a globalist ideology that threatens their very existence as a Jewish state. "The Right can only win if it goes out into the streets," argued attorney Ilan Tzion in a Forum Cafe Shapira speech that rocked the Israeli Right camp.

"Bagatz is an anti-zionist sect whose central idea is 'a state of all its citizens … What this means is the loss of a Jewish majority in Israel, this is the reason Bagatz let so many illegal infiltrators in ... why they fight to let hundreds of thousands of Muslims in. As an anti-zionist group Bagatz has no respect for the law of return—which grants Jews the right to immigrate to Israel and automatically become a citizen of the state—Zionism is affirmative action for Jews: Israel is the Indian reserve of the Jews, in this place Jews have special rights so they can survive—Aharon Barak has injected the 'virus of equality' into the system, thus cancelling equality for the Jews.”

This is the essence of Zionism and why Israel was founded, stressed Tzion, but this contradicts Aharon Barak's globalist vision. In 2012 Tzion represented the state in a case against the entry of hundreds of thousands of Muslims into Israel as part of a family reunion. Bagatz argued in favour of it, explained Tzion, and “were not bothered” when told that within sixty years Israel will be a Jewish minority.

“Some find this hard to believe, pointing to a religious and a Mizrahi judge within the Supreme Court," Tzion said, "to them, I say, that the individual judge might have anti-globalist, non-progressive views, but their behaviour as part of a group is completely different, it is like a group of boys, all good individually, but as a group are capable of rape—it is the group mentality that wins—the court practices Aharon Barak's ideology, it carries his DNA.” 

“We are on our way to a legal, military coup," concluded Tzion, "a quiet coup without a single gunshot being fired.” 

Tzion is not alone. Many within the Right have noted disturbing, no longer deniable deep-state elements within the system. Israelis saw the media, police, judiciary, banks and army rise together against an elected government; there was even a report of the Mossad urging its members to join anti-government demonstrations. 

“For years we assumed that it was only the judiciary," said political scientist Moshe Berent, "now we see the media, academia, Histadrut (workers union), major employers, hi-tech industry, banks, shopping mall chains, and even IDF commanders, joining the 'looming dictatorship' hysteria—agents with no red lines, willing to sacrifice everything, including destroying Israel and 'cutting the baby in half'.”

Second Class Citizens

The crisis brought to light deep divides within Israeli society—between "secular and religious (Haredim), Ashkenazim and Mizrahim, Tel Aviv and the periphery." Pro-reformers were painted as "the lowbrow Mizrahi masses, largely of Moroccan origin, blindly following Bibi." Some pro-reform demonstrators tried to dispel this myth with signs such as "Tel Avivian, Ashkenazi, 8200 (elite intelligence army unit), supports the reforms," or "I am a Tel Aviv Ashkenazi, with a degree in economics and business, an officer in a top army unit, I support the reforms."

It is important to note that proportionally, more Ashkenazim vote left or centre, while Sephardi/Mizrahi Jews mostly vote Right—Netanyahu's Likud, and Arye Deri's Shas are voted for overwhelmingly by Jews from Morocco, Iran, Iraq, Egypt, Yemen and Tunisia. This population, which gave Bibi a 64 mandate majority, felt like 'second class citizens'—the slogan of many during the current crisis. People felt that their values and votes were dismissed by the Ashkenazi elite. 

The pilots' revolt in particular left a deep scar on many. The 'Ashkenazi elitist' pilots, seen as "the epitome of Jewish independence and resilience," refusing to serve, sparked calls for the much loved annual airshow—the pinnacle of independence day celebrations—to be cancelled. Mechanics and groundsmen, overwhelmingly of Mizrahi origin, found the pilots' disloyalty condescending and disrespectful of their vote. 

“The crisis has opened our eyes," said influencer Ronit Habibistit, "For years we said there was discrimination but they denied it, now it just blew up in their face. The fact is that elitist groups have taken over the army, police, media, academia and the judiciary. We didn't really win elections, we vote but their vote is worth more, the government decides something but they turn to Bagatz and it overturns it.” 

The gap between the public and those who control the academy, the judicial system and the media, has never been as clear as it is now, observed Levin, "This all boils down to one point—people who think they are superior beings who will 'save the people from itself', they know better than others, they are more moral."

Israel is Turning Right 

On March 27th, after 12 weeks of intense protests, Netanyahu declared a postponement to the judicial alterations. As he aimed to “prevent civil war by means of dialogue,” the PM initiated discussions with the opposition and reinstated Yoav Galant as defence minister. Yet, the demonstrations continue. It has been made evident that the impetus is not merely discontentment with the reforms, but has become a rejection of the right-wing government, with Netanyahu as Prime Minister, and Israel’s Hebrew identity. The plotters of the coup, particularly former Premier Ehud Barak, have made clear that the primary intent is to overthrow Netanyahu’s administration regardless of the judicial changes.

"The Left knows that it has become unelectable," said Haim Ramon of Labour, "and that the Supreme Court is their only form of control." Even weak demographic figures do not bode well for the non-religious, progressive minority. Israel is inhabited by the greatest number of young people in the Western world, with 45 per cent aged between zero to 25 years. Most of these vote within the Right. 

It is important to recognise that Israel is slowly and consistently turning to the right. In the recent elections, the Left-wing party Meretz failed to acquire enough ballots to enter the Knesset, while the Labour Party, previously Israel’s foremost party and consistently reaching over 50 mandates, obtained a minimum of five.

Civil War

"Israeli society is on a dangerous collision course," said Netanyahu in his address to the nation, speaking of a crisis that is endangering "the basic unity" between Israelis. "I say here and now" he stated, "there can be no civil war." But can a compromise be reached? With negotiations deadline drawing near and preparations for the Right's one million march in full swing, the now retired Aharon Barak has called for the protests to continue and grow. Is Israel heading for a civil war?

"A civil war is indeed a possibility," said Professor David Passig, who predicted the 9/11 Twin Towers attack. "Israel was founded by a multitude of Jewish streams and factions, who put aside their personal vision, for the sake of the urgent need to build a state for the Jewish people. Israel is still in the process of forming its identity, and this crisis centres around the different factions' vision of what Israel is—most notably, is it first and foremost a Jewish state? Or 'a state of all its citizens' as Aharon Barak believes.”