What’s at the root of Israel’s democratic crisis

Israelis across the country are protesting against Prime Minister Benjamin Netanyahu.

The surging mass movement successfully delayed his attempt to overhaul the country’s judiciary.

But some see Netanyahu's actions as sign of deeper troubles for Israeli democracy.

“Everybody started to realize how much it could touch and roll back the kinds of progress Israeli society has made in recent decades," Scheindlin says.

Today, On Point: What’s at the root of Israel’s democratic crisis?

Dahlia Scheindlin, public opinion researcher and international political strategist. Fellow at Century International. Columnist at Haaretz. (@dahliasc)

Yaniv Segal, a leader of the Pink Front, a group of young activists in Israel who have protested against Prime Minister Benjamin Netanyahu. (@segal_yaniv)

MEGHNA CHAKRABARTI: It was the threat of civil war, not the sundering of democratic norms that forced Israeli Prime Minister Benjamin Netanyahu's hand, for now. On Monday night, Netanyahu spoke to the Israeli people, saying he would pause his government's highly controversial efforts to overhaul the country's judiciary.

NETANYAHU [Translation]: When there's an opportunity to avoid civil war through dialog. I, as Prime Minister, I'm taking a time out for dialog.

CHAKRABARTI: Netanyahu said, quote, 'We insist on the need to bring about the necessary corrections in the legal system. We have the opportunity to achieve a broad consensus. This is a very worthy goal.'

For the past three months, Israeli society has been profoundly divided. Wave after wave of protests and demonstrations against Netanyahu's proposed reforms, drawing people like Yaniv Segal into the streets.

YANIV SEGAL: Saturday is the center of the week because of the massive demonstrations that we have all around Israel. So Sunday, normally we rest a bit from the demonstrations of the weekend.

CHAKRABARTI: On Sunday, Yaniv was relaxing at home in Tel Aviv. He'd just wrapped up a Zoom meeting with other activists.

SEGAL: And then suddenly we heard that Netanyahu fired his minister of defense.

CHAKRABARTI: On Saturday, Israeli Defense Minister Yoav Gallant, a member of Netanyahu's Likud Party, spoke out against the judicial overhaul. The protest movement had spread to elite Israeli army units that declared they would not serve if the judicial legislation passed. Well, that prompted Galant to speak out, so Netanyahu fired him. The news spread across Israel after midnight to people like Yaniv Segal.

SEGAL: We got messages on WhatsApp from different groups ... we go out now, go out right now. And we took the motorbike and we drove to ... the major place where the stations are in Tel Aviv, and we just took the Ayalon Highway. What we do in every demonstration is the same playing drums and marching like the most nonviolent thing you can do. We have a lot of energy ... with megaphones, but it's nonviolent. ... It wasn't violent, but people were barricading the highway of violence. Someone started fires and it seems like something we should do in order to put up the alarm, you know, like to show that we are not going to let it pass like that quietly.

CHAKRABARTI: The protesters numbered in the hundreds of thousands. In Jerusalem, protesters surrounded Israel's parliament. The Knesset, the nation's biggest labor union, went on strike. So did universities, banks, even hospitals. Israeli embassies closed their doors. Flights were grounded at Ben-Gurion Airport. Yaniv says that massive action from Israelis is a measure of their awakening realization about the state of Israeli democracy.

SEGAL: Now we understand how fragile our country is, how much the lack of constitution is costing us right now, and how much our rights are not promised. We are a young country of 75 years old. After 2,000 years, we didn't have a Jewish entity in Israel, and they are just putting all that in risk. They are undermining our democracy.

CHAKRABARTI: Prime Minister Netanyahu has paused the judicial reforms, but he has not abandoned them. The prime minister said his government will reconsider the legislation following the Knesset's Passover recess, meaning Israel may be at the beginning of a long struggle over its democratic identity. Yaniv says he's certain Israelis can stand the test.

SEGAL: Yes. I am. I am the only defender of the citizens of Israel. I am, for the first time in my life, really for the first time. I am patriotic. I'm full of proud and love to this place. You know, my mother is Italian. I have an Italian passport. I can live elsewhere, but I don't want to. I saw the people that were on the highway, and they were by hundreds of thousands. And it's the most courageous and beautiful people that I saw. And it's the citizens of this country. And they trust us.

CHAKRABARTI: Yaniv Segal. He's one of the leaders of the Pink Front, a group of young activists in Israel. Well, it is stunning to hear authentic concerns over civil war in Israel. The nation long held in the U.S. government's eyes to be the essential example of democracy in the Middle East. Our guest today says the unrest in Israel is not due simply to current right-wing efforts at judicial reform. She says Israel's democratic fragility dates back to the nation's founding. Dahlia Sheindlin is a public opinion researcher and international political strategist. She's also a fellow at Century International and a columnist for the Israeli newspaper Haaretz. And she's in Tel Aviv. Dahlia, welcome to On Point.

DAHLIA SHEINDLIN: Thank you for having me.

CHAKRABARTI: So first of all, tell you, I have to say it was stunning to hear, you know, people at the highest levels of the Israeli government saying the words like possible civil war. What's your response to that?

SHEINDLIN: I think that this is uncharted territory for the entire country. There is a great sense of hostility. And, you know, as much as your earlier guest was, you know, very exhilarated by all the people who have been going out, you know, for 12 weeks in a row everywhere in the country, being very creative and very peaceful about the kinds of demonstrations they've been holding and pulling in so many different kinds of communities to stand up for democracy and oppose the judicial reforms.

Of course, there is another side of the population who is equally kind of barricaded into their perspective that this reform needs to happen. And primarily, I think they are devoted to the current government. This is the 48.3% of the Israeli population, or the Israeli voters, I should say, who voted for the members of the coalition, the parties that make up the current governing coalition. They may not have fully prioritized this particular kind of judicial reform when they went to the when they went to the ballot to vote on November 1st last year.

But they certainly trust that this government is doing the right thing and they generally share the criticism that this government has advanced of Israel's judiciary, particularly the Supreme Court. And those two sides are living almost parallel ideological universes. And the tension has risen very, very high. Now, it wouldn't be the first time, of course, that Israel has had deep, deep internecine tensions.

We've had our share of violence in the past, of course. But I will say one thing about the threat of civil war. Even though Israel's own president, Itzhak Herzog, who is a ceremonial figure but has definitely taken an important role here, he himself warned of the potential to reach a civil war, and by that he meant violence between the two camps of citizens. I have to say that I think Israel is still pretty far away from actual violence.

And on a broad scale, you know, other than skirmishes between citizens. But I will say that when the prime Minister Benjamin Netanyahu on Monday night announced the postponement of this legislation, a temporary suspension of the legislative process in the name of preventing a civil war, I think he was trying to present a particular message and portray himself as the only person in the country capable of withholding those forces. I don't think that reflects the truth of why he made that decision.

I think that there are numerous other things that would come first on his list of how he of of reasons why he finally, after three months of these dramatic protests, decided to suspend the legislation, including the grave economic cost of the general strike that was called that very day. This kind of thing costs the country billions of shekels every day. And even though that was the first general strike, there had been many disruptions of workdays, not only weekend days during the last three months.

And, of course, the severe danger and warnings from the chief of staff about the lack of preparedness of the army due to low morale and reservists saying they're not going to show up for training. And the real concern about Israeli security, not to mention U.S. pressure. I think we have to realize that the president has taken a rather unprecedented position here of making very cautious statements, but statements that nobody could miss in recent months. And I think all of those factors came together in addition to his wanting to present an image of the person who could prevent civil war.

CHAKRABARTI: Okay. So we're going to talk about exactly what the proposed judicial reforms are in a few minutes. But I actually want to just take a step back and provide me and listeners with a common set of facts in terms of the current situation in Israel. So we have this coalition that Netanyahu has at the moment, who is in his governing coalition, because I've read it as being described as the most right-wing government in Israeli history.

SHEINDLIN: Yeah. It's important to remember that Israel always has a coalition. No one party has ever won a majority of parliamentary seats. And we do have a parliamentary system, which means that our executive, our government is drawn from a majority of parliamentary members. In that sense, there is not a total separation between the legislature and the executive. And that's an important point to understand as we get into the judicial reform.

But because no one party has ever won a majority and we do have a very fragmented system, every Israeli government is a coalition, and we have had plenty of coalitions over the years that were made up of all right-wing parties in which bits of Mr. Netanyahu's party, the Likud, represents what Israelis view or did view for most of its history as a mainstream right-wing party. And when we say right wing in Israel and left wing, we're mainly talking about nationalist themes, themes that relate to territorial expansion or withdrawal with relation to the Palestinian territories and occupation, support for a negotiated peace and a two-state solution or preference for greater Israel.

Those are the themes that define Israel's right and left spectrum more than anything else. And Likud was considered the mainstream center right party, and there have been governments that were only made up of parties with Likud and the right in the past. In fact, not even very long ago, we had a government like that between 2015 and 2019. The reason why we many of us consider this the most right-wing government is that the party immediately to the right of Likud is called religious Zionism. They ran as it's actually an amalgam of three smaller factions, very common in Israeli politics. It's a very fragmented society. And this party represents not only people who consider themselves to be religious Orthodox Jews, who are always supportive of a more nationalist line and territorial expansion support Settlements want Israel to retain control of the West Bank and its control over the exterior of Gaza. But this is a particular kind of community within that religious Zionist community.

CHAKRABARTI: Dahlia ... you were describing to us, the other members of this coalition that Netanyahu has right now.

SHEINDLIN: Yeah. And I was talking about the religious Zionism party, which is actually an amalgam of three other parties. And this is really the most extreme version of the religious Zionism, religious Zionist community that we've seen in a party configuration in Israel. These people are basically some of them are disciples of the late Meir Kahane, who was a proponent of Jewish supremacy back in the 1980s. And, you know, these are people who have essentially adopted and adopted his way of thinking that Jews should have a supreme position in Israel and privilege.

And they are always targeting Arabs and trying to advance a much more militarist and hard line and authoritarian understanding of society. And so that party came in actually third place in the Israeli elections, and they are the second biggest coalition partner. And beyond that, there are two other parties representing Israel's ultra-Orthodox communities, the Ashkenazi ultra-Orthodox, ultra-Orthodox Jews of European descent, and the party that is essentially the ultra-Orthodox leadership of the Mizrahi Middle Eastern Jewish community.

Not all of their voters are ultra-Orthodox, but they're mostly traditional or religious, and that usually goes along with very hard-line, right-wing views in Israel. So this is a four-party coalition with all the internal factions. That is almost entirely, three of those four parties are far to the right of Likud, although at this point, Likud has changed so much under Netanyahu's leadership that I would say a large portion of Likud's most senior figures and its ministers are not really that different from various figures within religious Zionism in terms of the kinds of policies they stand for.

And therefore, as a result, many of us thought that they would have a very easy time advancing their policies and even establishing the government. But all of that turned out to be a little more complicated, certainly in negotiating the establishment of this coalition. But the one thing that they all agreed on and they swore to in the coalition agreements, which are public, is that they would advance judicial reform in their language. That's the terminology they use, and that they would all support the judicial reform, and that by judicial reform, they meant constraining the independence of the judiciary, particularly the powers and the authorities of the Supreme Court, but also other aspects of the judiciary.

CHAKRABARTI: Okay. So this brings us to the legislation that has pulled all those Israelis into the streets for the past three months here. More specifically, the proposed reforms include rules that would render the Supreme Court unable to provide meaningful review or oversight from regarding legislation coming out of the executive. And I believe also it would allow the government essentially to appoint judges in certain positions here. I mean, you described it as an all-out assault on the judiciary and destroying judicial independence in the in the country. Why?

SHEINDLIN: Yeah, I think that's very hard to see it in any other way because it's really very well rounded. It's a very elaborate program. The program was largely developed before the elections. It was published in very similar form by the religious Zionism Party. They made a big deal out of it. And it's a series of laws.

I mean, you've described two of the most important and the most prominent giving the coalition are executive power, essentially total control, effectively total control over the appointment of Supreme Court justices and other justices. But particularly they're interested in choosing the Supreme Court justices. And severely curtailing, if not crushing altogether, the ability of the Supreme Court to exercise judicial review of legislation and of executive action. They want to try to ban the Supreme Court from ruling at all on what Israel calls basic laws, which have disputed status. But they are something like higher laws.

We call them sometimes quasi constitutional laws. They want to have their further plans. I mean, there are about eight different laws that we consider part of the overall effort. Only one of them was immediately in play in the coming week. But all of the others, they're trying to advance, they at different stages of the legislative process. And these include things like making all legal advisers to Israel's ministries, into political loyalists rather than professional, independent legal figures, splitting the position and weakening the position of the attorney general.

You know, there's so many different aspects that they want to do to make sure that the judiciary is essentially under political control. Now, we have to see that in light of Israel's bigger system and without going in into entire civics lesson in terms of Israeli governance. The main thing to keep in mind is that every democracy, as every listener knows, has checks and balances. Otherwise, it's not a democracy because you have consolidation of power in Israel for all sorts of structural and historic reasons. We actually have an executive with very few structural constraints on its power.

So I mentioned before that there is not a total separation between the legislature and the executive because the executive is drawn from a parliamentary majority, which means the parties of the coalition have a majority in Parliament. We don't have a formal written constitution and those are for historic reasons we can get into. We don't have a president who holds a veto. We don't have two chambers of parliament. We don't have regional representation. We're not part of any international courts.

And so there's actually no structural limitation on what the executive can do. And until the 1990s, there was very little constraint on the kind of laws that the legislature could make. And only in the 1990s the Knesset itself passed certain what we call basic laws stipulating certain human rights. And based on that, the Supreme Court ruled a few years later that it would exercise judicial review over legislation that it believed violated the rights that the Knesset had enshrined in law. But that leaves so much open to debate and essentially a lack of checks and balances other than one enduring institution in Israeli society, and that is the independent judiciary. So this is why I think the penny has dropped for so many Israelis that all of a sudden they realized, as your earlier guest put it, that things are very fragile.

Now, I should also point out that there are citizens of Israel who have been well aware of this for a long time, and I'm talking particularly about Israel's Palestinian or Arab citizens who have collective memory of living for the first 20 years of Israel's existence under a military regime in which they had no civil rights or no and many of their human right other than the franchise, I should say, they were allowed to vote, but not under the kinds of conditions we would consider free democracy. They are subject to certain laws that are discriminatory.

So, you know, many Palestinians, whether they're living under occupation or as citizens of Israel, have long thought that Israeli democracy has not protected them. But I think for the 75% of Israeli citizens who are Jewish, they are just realizing that something they took for granted was actually hanging by a thread, a robust and strong thread of the independent judiciary. And that's why these changes are so frightening.

CHAKRABARTI: So just to reiterate, you're saying that the judiciary essentially, and we'll get into the reasons why, serves as the only meaningful check on the executive in Israel. But I also want to point out that, you know, there's the sort of why now? question. Because there has been this right-wing critique of the judiciary in Israel for some time now. Benjamin Netanyahu was prime minister previously, too.

Is it that there's this sort of perfect storm in Israeli politics at the moment with this extreme right-wing coalition and also Netanyahu's own? You know, he's got a set of corruption charges against him that are working its way through the Israeli judiciary. Is that why we're seeing this sort of the push now for the most comprehensive changes to the judicial system there?

SHEINDLIN: Absolutely. It's a perfect storm. And as you correctly point out, the criticism of the balance of powers in Israel and the role of the judiciary and specifically the accusation that judicial activism has overstepped its bounds and constrains the ability of the executive to govern. That has been a right-wing accusation that has become really one of the rallying cries of the right-wing parties, I would say primarily since 2009. But the dispute over authority, where authority where authority flows from in Israel goes way back historically.

But there are communities over the decades who have considered that when the court tries to, you know, in any way advance things like equality or separation of religion, state or puts or on the very rare occasion when the court has ruled against, for example, a West Bank settlement. So those communities, the religious people who do not want separation of religion and state or the pro-settler community who do not want constraints on a single settlement believe the court has been somehow an enemy.

And that attitude, I think, was given a boost in the early two in from 2009 roughly onwards, as the Likud itself, under Netanyahu began making common cause with the illiberal populist nationalist direction, which certainly coincided with similar trends around the world. And we can name names if we want to. But in Israel we talk a lot about Viktor Orban in Hungary and Poland and of course, Donald Trump. So those forces converged and Netanyahu again presented himself through much of the 2000s as the person who always kind of trafficked in this nationalism and the ethnic incitement in a way between the more radical elements, hardline and even racist elements of his governments.

But he always presented himself as the person who could hold back those extreme forces. And he made rather eloquent statements about the importance of an independent judiciary, except, you know, and it's very popular in Israel now to replay the recordings of these statements that he's made to say, look, he once upon a time supported a strong and independent judiciary. But the interesting thing is that every time we replay those quotes of Netanyahu, they're all from 2012. You don't hear him saying too much after that. And then, of course, by 2017, he was under serious investigation.

By 2018, we realized the investigations were coming closer to indictment. In late 2019, the attorney general announced that he would be indicting Netanyahu, and he was formally indicted in early 2020 on three different cases of corruption. And that was a major turning point in that Netanyahu himself fully embraced not only the attack on the judiciary in general and not quite for the same reasons, but embraced a full out, deep state narrative. Suddenly, it was the judiciary and the attorney general and the state prosecutor and the police chief. These were his own appointees. The police chief and the attorney general were his personal appointees.

But they, of course, in this narrative were in cahoots with the media, and they were all conspiring to bring him down and send and shed his blood is a term that he likes to say a lot. So he joined the kind of pile on against the Israeli judiciary. And then I think we have to add two more factors to explain the why now. The first is, let's say demographic, because the right wing voters, the voter base in Israel, has been growing over time in general, partly because of demographics and partly because of the kind of snowball effect of having a hard line nationalist right wing government in power for so long since 2009.

Remember, Israel is a relatively young country demographically relative to other Western countries. And those are people, you know, big swath of the voter population has now grown up knowing only Netanyahu's very hard line nationalist governments and the idea that to be left wing is somehow to be a traitor. So there is a demographic factor and then there's the political factor. Netanyahu was unable to have an outright win in four consecutive elections since 2019. He was only able to kind of reach a stalemate politically by the fifth election after, you know, the entire country was exhausted. The fifth election was held on November 1st, 2022.

And for the first time in that cycle, the parties loyal to Netanyahu won an outright majority in parliament. They didn't win a great majority of the absolute number of voters, but never mind now they had their strong parliamentary majority of 64 out of 120 seats. Netanyahu and all the coalition partners are well aware that they will not have this chance so easily again, despite the demographics that I just mentioned. There is an interplay here, we can argue it, but I think that they know that this is, you know, a kind of heaven-sent chance to do what some of the religious parties consider to be divine work.

CHAKRABARTI: So, Dahlia, really what fascinates me most is what you have written about here. And that in order to understand what we see erupting in Israel now, we actually have to go back to the country's founding because we have the similar tensions over the desire for a strong executive and concerns from the religious right over what would be the basis of law, the rule of law in Israel, and the fact that Israel has no written constitution, even though I believe, as you've noted, that was one of the requirements of the creation of the Israeli state. So just briefly, tell us about the first couple of years of Israel as a nation, why it's so important to understand what's happening now.

SHEINDLIN: The issue of the Constitution is a very good prism for understanding this, even though I want to be cautious and not convey that if we had a constitution, we would avoid and solve all of these problems. I mean, America has a wonderful constitution and there are still many fissures.

CHAKRABARTI: Good point.

SHEINDLIN: So, I mean, but it is a very good prism. It is a good prism because it reflects the tensions. And I think, as you point out, in 1947, when the United Nations General Assembly adopted what we mostly think of as the partition plan, U.N. Resolution 181, it also included a very elaborate requirement for a very progressive, liberal democratic constitution for the new states that were to be created. Israel was committed to it. I mean, Israel wasn't Israel yet, but the leaders of the pre-state community were committed to it. They began working on drafts.

But immediately the real tension, one of the most important tensions, was the fact that some of the critical leaders of the Jewish community who became parties that would be part of the governing coalition from the very beginning were the religious parties, mostly the ultra-Orthodox parties, but to some extent, even the national what we now call national religious parties, who simply rejected the authority of the state flowing from the people. And this is, I think, you know, the foundation of democracy is the idea that authority flows from the people who elect their representatives to enact the people's will. They are accountable to the people. The religious parties never truly accepted that, certainly not in the beginning.

And then there are interesting shifts along the way. But from their perspective, there was no constitution other than the Jewish documents of Jewish law and the Torah. So the only authority for them is God. And therefore some of them in the early in the pre-State years were even against the idea of a secular civic state. But never mind, they decided to support it. But they certainly couldn't go so far as to accept a constitutional document that would draw authority from the people and hold the people in the state accountable to civil law.

And so I think on that level, that created the first tension that, you know, Israel's leader at the time, Ben Gurion, realized that if he forced the country to move ahead towards a written constitution, those religious parties would not participate in the coalition. They could tear down the government. Now, there could have been parties representing Israel's Palestinian citizens or Arab citizens at the time, but those parties were not independent, as I mentioned. They were the citizens were well, they weren't citizens yet. Nobody were citizens yet, but they were under a military regime. They didn't have real freedom.

And in any case, the new Israeli state would never have wanted to put Arab parties into their governing coalition. In fact, they never did until 2021. That's how long it took to have an independent, true representative of the Arab community who are, of course, native to the region and Israel's executive. All of these tensions came into play and disputes over which branch of government really should have the authority. Ben-Gurion certainly wanted as much of it for himself as he could get, and that's very reflective of where we are now, as well.

The Century Foundation: "Q&A: Netanyahu’s Total War on Israel’s Judiciary" - "Following Prime Minister Benjamin Netanyahu’s return to power, his new far-right ruling coalition has launched an all-out attack on the Israeli judiciary. Israel’s courts, which act as the only check on executive and parliamentary power and are arguably the last bastion of democratic rights for Israeli citizens, stand to lose their independence and their power to review legislation."