The Daily - Protests and the Future of Democracy in Israel

Episode Date: March 10, 2023

Almost immediately after taking power in December, Benjamin Netanyahu’s far-right coalition in Isreal proposed a highly contentious overhaul of the Supreme Court.The court has long been seen as a crucial check and lone backstop on the government, and the plan has divided Israeli society, kindling fears of political violence and even civil war.Guest: Patrick Kingsley, the Jerusalem bureau chief for The New York Times.Background reading: Protesters restricted road access to Israel’s main airport hours before Prime Minister Benjamin Netanyahu flew to Italy.Here’s what to know about the government’s proposals.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. Since Benjamin Netanyahu's far-right coalition took power late last year in Israel, violence between Israelis and Palestinians has been escalating. At the same time, there's another crisis taking hold. We are right in the heart of Tel Aviv, and you can see thousands and thousands of protesters here have just brought this city to an absolute standstill. One that has sparked massive protests and divided Israelis deeply over a question that's fundamental to Israel's democracy and to what kind of country it will become. We're here to demonstrate for the democracy. Without democracy, there is no state of Israel.

for the democracy. Without democracy, there is no state of Israel. Today, my colleague Patrick Kingsley on what is driving some of the biggest protests in Israeli history and why this moment is so pivotal for the country's future.

It's Friday, March 10th. So Patrick, I've been reading about what's been happening in Israel. And from what it looks like, we're really in a crisis moment here, where the conflict isn't just between Israelis and Palestinians, but actually among Jewish Israelis themselves. Tell us what's going on. Well, since the start of the year, we've had these two crises. We've had a very painful, violent start to the year where there's been a rise in violence

that has left more than 70 Palestinians dead and at least 14 Israelis dead. But in parallel, inside Israel, there is something that's far rarer, which is a domestic internal crisis between Jewish Israelis that has set off a wave of mass protests. And these are protests that illustrate deep divisions between different groups in Israeli society, religious, secular, different social classes. And at the center of this dramatic battle is the Israeli judicial system, and in particular, its Supreme Court.

is the Israeli judicial system, and in particular, its Supreme Court. And Patrick, what is it in particular about the Supreme Court that is making it such a lightning rod right now? Fundamentally, this is a question about the future and nature of Israeli democracy itself. Because the far-right government that entered office here late last year, led by Benjamin Netanyahu, wants to limit the court's influence. too powerful and its influence needs to be limited in order to ensure that elected lawmakers have more power and influence than unelected judges on the Supreme Court. And another large part of Israeli society completely disagrees and it says, no, we need to protect the court, we need to protect the court's influence because the court is the only check and balance on the power of the government of the day and without the court we cannot ensure a balance of power between the

different arms of government. So this is a really fundamental fight that is playing out here, one that is in essence about the soul of Israel. Help us understand how things have gotten to this point. So to understand it, I think we should go back about 30 years to the early 1990s. Unlike the United States, Israel had never had a formal written constitution and still doesn't. But in the early 1990s, lawmakers began to try to create quasi-constitutional laws, something akin to a bill of rights that set out certain personal human rights. And in doing so, they basically opened the door for the Supreme Court to intervene when future laws contravened those basic personal rights that were enshrined by the new legislation in the 1990s. So in other words, it set up a situation that when the parliament passed a law

that potentially infringed on rights of minorities or other rights, the court could come in and strike it down. Exactly. And this was a big shift in the court's role in Israel. And the judge that became most associated with this transition was the man who was the chief justice of the court from the mid-90s until the mid-2000s, Aharon Barak. And tell us about him. Barak was born before the Second World War in Eastern Europe. He survived the Holocaust. He moved to Israel. He gets a law degree. He becomes a towering figure in the legal community. He becomes an attorney general, a peace negotiator briefly between Israel and Egypt. And he eventually becomes head of the Supreme Court in 1995. And while there were very many people involved in this judicial change in the 90s,

he has become the one person most associated with it because he's spoken often and written often about the merits of judicial intervention in public life, sometimes called judicial activism. According to my approach, judges in modern democracies have a major role to play in protecting democracy. He believes that the court system is an important check on the power of government. And without judicial intervention, a government can become too powerful.

a government can become too powerful. We, the judges of this generation, are charged with watching over our basic values and protecting them against those who challenge them. He famously popularized the term constitutional revolution to describe the empowerment of the Supreme Court. We cannot take the continued existence of democracy for granted. So how did that work in practice? Well, in practice, at least initially,

this new legal principle wasn't really used very much. But then this newly empowered court makes a few decisions that put it firmly in the crosshairs of different parts of the Israeli bright. And perhaps the best example of this was in 2012, when the Supreme Court moved to overturn a law that gave ultra-Orthodox Israeli Jews a deferment to army service. And it's important to remember that in Israel, military service is mandatory for most Jewish Israeli citizens.

But ultra-Orthodox Jews had basically been given an exception so that they could study Jewish law. And the court thought this shouldn't be the case, that no group should be given special favors. And so they overturned the law. Ultra-Orthodox Jews felt that the court was trying to meddle in their way of life with that decision. Another key moment was in 2020,

when the court makes a decision that angers another part of the Israeli right, the settler movement. The court scrutinized a law that was passed by parliament that would have authorized settlements in the West Bank that had been built without government permission on private Palestinian land. The court decided to overturn the law. It said that the law infringed on the property rights of the Palestinians. And in the process, the settler movement felt that the court was interfering in their political aspirations of settling on more and more of the West Bank. of settling on more and more of the West Bank. So basically it sounds like this frustration that the far right and ultra-Orthodox in Israeli society had at the decisions the court was making was mounting over time

as the court intervened in each of these decisions that were really about core issues in Israeli society. Absolutely. And on top of that, there were other instances where the court made huge decisions that, though it wasn't necessarily overruling parliament, was nevertheless again and again angering the Israeli right. And there's one decision from the mid-2000s that really hangs over all of this. The Israeli government decided in 2005 to withdraw from the Gaza Strip and get rid of all the settlements in the Strip that had been established since Israel occupied Gaza in 1967. And the court backed that decision. It was an enormously emotional moment and an enormously emotional decision for Israel and for Israelis. Some people saw this as a vital

step towards making peace with the Palestinians, and others saw it as the uprooting of thousands of Israeli settlers from their homes. And to this day, it's a decision that is still raised by people on the Israeli right, in particular the people that want the Supreme Court to be undermined, as part of their broader argument that the court is doing and has done the bidding of the left. And I mean, is that a fair assessment given all these decisions? Well, in reality, things are more complex. For a start, while the court has taken decisions that have gone against certain particularly ambitious goals of the settler movement. The court has been broadly supportive of the settlement enterprise. There are even judges today

who live in settlements in the West Bank. But nevertheless, it has also taken decisions that in some cases have favored Palestinians, favored minorities. And the strong perception remains among the far right that this is a left-wing court that is blocking the will of the Israeli majority. And in the process of all that,

there is a lack of justice for Bagatz. We need to raise the bar of the tractor. Political leaders of parties on the right took up this frustration as a political cause. They have long said that something needs to be done, that some of the Supreme Court's power needs to be taken away. And we're committed to solve the issue of judicial activism at large. But for many years, they didn't really have any means of doing that because they never had enough seats in Parliament

to have full control over Parliament. And so they had to compromise. And these designs that they had on the Supreme Court never materialized. But then late last year, that all changed. We'll be right back. So Patrick, you said before the break that late last year, the far right got their chance to change things with the court. And of course, the one thing I know about late last year in Israel, mainly from you, because we did a show about it, was that there was a big, very important election.

How did that affect what the right wanted to do with the court? what the right wanted to do with the court. Well, as we discussed the last time we chatted on this show, Benjamin Netanyahu, Israel's longest serving prime minister, was on the ropes last year. He was facing a corruption trial. He's still on trial for corruption. And because of that trial, he had been rejected by many of his previous more moderate coalition partners.

And so to re-enter power, he strikes a deal with a bunch of far-right parties in order to form a majority coalition in the Israeli parliament. Which puts him in an interesting spot. Israeli parliament, which puts him in an interesting spot. In the past, he was a supporter of the Supreme Court's independence. We are all full of appreciation for the great work, the role, the mission of the Supreme Court. He even gave this big speech backing the court and its role in 2012. And spoke about how great it was to have this balance between the Supreme Court and parliament. And that's why I'm doing and will continue to do everything I can to keep a strong and independent law system. And in previous governments, he had kept at bay any demands from right-wing colleagues

to overhaul the court, because he would always create coalitions with parties from both his left and his right. Former Israeli Prime Minister Benjamin Netanyahu may be about to pull off a political comeback and get his old job back. But this time was different. Mr. Netanyahu is in a position to lead a religious and right-wing majority coalition. to lead a religious and right-wing majority coalition. This time his hands were more tied because this coalition is Israel's most right-wing government ever. He's actually one of the most left-wing members of that government.

And what that means is that these far-right parties and even right-wing members of his own party have been able to push this goal that they've always wanted to achieve. Israel's new government has unveiled a plan to overhaul the judicial system and weaken the powers of the Supreme Court. So they're in power.

They have a green light, effectively, to do this thing that they've wanted to do for a long time, So they're in power. They have a green light effectively to do this thing that they've wanted to do for a long time, and they push on the gas. What is in the plan? There's quite a few technical things in the plan, but there are two central points. The first point is that the government wants to give itself control over who gets to be a judge,

who gets appointed to the Supreme Court. They want to avoid more Aharon Baraks, to put it simply. The second central point is they want to limit the influence that the Supreme Court can have over Parliament. They want to give Parliament the ability to override the court's decisions, and they want to reduce the instances where the court can override parliamentary decisions. So they want to avoid another repeat of the 2020 ruling that the Supreme Court made about settlements. And what was the reaction to this? It was furious. It was furious. Haram Barak, the chief justice whom we mentioned earlier and who's been retired for a while but has remained a figure in public life,

he weighed in on these proposals shortly after they were first announced. And he said that they were a string of poison pills. There were the mass protests, as we mentioned. There are the mass protests. But also, pressure has been steadily rising from all corners of Israeli life. Some of the most successful names in Israeli tech, such as Verbit and Disruptive, are now threatening to move elsewhere. We saw tech leaders, businessmen, saying they were either going to pull out their money

or going ahead and doing so. They believe that the reform threatens the country's business-friendly environment by weakening the legal system. And just a few days ago... Now protests are emerging even within the nation's military. We also had military reservists who play a crucial role in Israeli military operational capacity, hold a private meeting with senior commanders,

expressing ambivalence about serving if the court overhaul goes through. And as you said earlier, some of what's worrying Israelis here is the idea that the court would no longer serve as a check on the government. I get why that's a concern. But what in particular

are Israelis worried might happen? They're worried about quite a few things. One of them is the fear that Mr. Netanyahu, who is on trial for corruption, as we mentioned, might somehow take advantage of a neutered Supreme Court to subsequently push through legislation that might help him either escape punishment or end his trial altogether. Now, he denies that, but that is the fear of his opponents. And his opponents also fear for what these judicial changes would do to Israel at large, what kind of government and what kind of country would result if this overhaul was enacted in full? And in the longer term, I think there's a demographic concern here. Simply put, the religious part of the population, which tends to lean right wing, is growing faster, is having more babies

than the secular part, which leans to the left. And there's a fear that with a majority in the population, the right leaning section of society would have a lock on parliament. And without an independent judicial system, without an independent Supreme Court, the parliament would be able to trample on the rights of minorities, on secular Jews, on people who for years have been the mainstream of Jewish society, but in 30, 40, 50 years might no longer be so. Right. One caveat is that the people protesting against this overhaul are not monolithic. They do include people from religious backgrounds.

They do include people from right-wing backgrounds. Nevertheless, I think it's fair to say that a significant part, maybe the majority of the people who are protesting are those who feel that they would be left out in this more religious, more conservative new Israel that has been emerging over the last few years and due to demographic trends feels like will become more entrenched in the coming decades. Patrick, on top of all of this unrest, you have also been writing about clashes between the Israeli military and Palestinians in the West Bank.

There's been this pretty steep death toll, as you noted in the beginning of our conversation over the past couple of months. Is there a connection here? Well, on the surface, these feel like two different crises. And at a first glance, they might not seem connected, but actually there is a common thread. In the West Bank, we see growing activity by Palestinian armed groups and growing number of raids by the Israeli army. We see more attacks by Palestinian government on Israeli civilians. And we also see rising violence by extremist settlers, including arson attacks on homes and cars two weekends ago. And the connection between these two crises is this, that some of the people

who are driving some of the unrest in the West Bank were also simultaneously driving the judicial changes. After the arson attacks that I just mentioned, the far-right finance minister, Bezalel Smotrich, said that he wanted the town that was attacked in those arson attacks to be wiped out, to be erased. Wow. And he said that it was the state that should be doing that. He later walked back some of those comments, but he said them in the first place. And he's also one of the same guys who for years has been pushing for the undermining of the Supreme Court. He's one of the lawmakers that was behind that legislation that the Supreme Court struck down in 2020

that would have favored settlers in the West Bank. And so he's an example, firstly, of how some of the same people creating a more combustible dynamic in the occupied West Bank are also some of the same people who are driving these judicial changes. And he's also an example judicial changes. And he's also an example of why some of these folks want to neuter the Supreme Court. They want to do so in order to build more settlements more easily in more places in the West Bank. And they want to have fewer limits from the Israeli judiciary, from the Israeli Supreme Court on that activity. Right. This is precisely something that the court presumably would have stopped. And now, you know, the people who were involved in calls to violence like this are actually in the state, running the state, and want the state to be unfettered, if you will.

That's more or less it. And actually, these comments are part of what is driving the concerns from military reservists that I mentioned earlier. During those private meetings with military commanders, reservists raised the concern that without a strong Supreme Court, someone like B'Tselel Smotrich might be able to order the army to carry out illegal operations or immoral operations. And it's comments like the one he made last week about wiping out a Palestinian town that are driving some of those fears about the knock-on effects of neutering the Supreme Court. So the issue of court reform is existential to many Israelis, kind of for two reasons. Like you said, it's about the future of Israeli democracy, and that's really at stake, as many people see it.

But also, it just raises pretty urgent questions about, you know, what it would mean to take this guardrail away in a region that's already very inflamed. Yes, and people are worried. Polling from February suggested that more than a third of Israelis fear that this whole crisis could eventually erupt into a civil war. Civil war? Is that a possibility? It's certainly what people are talking about. You read about it in the newspaper, you see it in polling. It may very well be hyperbole and the reactions of people

who are feeling simply very emotional about a difficult moment in the country's history. But whether or not it actually gets to that point, and obviously everyone hopes it doesn't, but the fact it's even being discussed and written about in a semi-serious way illustrates the emotion of the moment. Patrick, where is all this leading? Well, there are still several parliamentary hurdles that have to be cleared in order for this overhaul to be enacted. And certainly at the moment, Benjamin Netanyahu's coalition has the numbers to pass these proposals, to put them into law. But it's starting to feel like the situation is spiraling out of control. And there's a sense that even among the government supporters that something needs to give.

So it could very well be that we see some sort of compromise in the coming weeks. And if we don't, the situation could spiral even further. For decades, Israel has projected itself as the only democracy in the Middle East. And that determination has always been contested by Palestinians who say you can't have democracy when you're occupying the West Bank. But now even Israelis are wondering about whether that claim of being a shining democracy is under threat. And the next few months will be a decisive factor in that debate. Patrick, thank you. Thank you, Sabrina, for having me on. On Thursday, Israel's mainly ceremonial president, Isaac Herzog,

took an unusually strong stance against the overhaul. I can't see anymore. Our people are being called before my eyes. What's happening here is a disaster. He said that the proposal, as it is currently drafted, quote, undermines the foundations of democracy and needs to disappear from this world, and soon. Netanyahu,

for his part, said he was open to dialogue but did not say that he would give up on the overhaul. We'll be right back. Here's what else you should know today. Well, folks, let me tell you what I value with the budget I'm releasing today. President Joe Biden proposed a budget on Thursday, the third of his presidency, a $6.8 trillion plan that would increase spending on the military and a broad range of new social programs while also reducing future budget

deficits. Republican control of the House ensures that the full blueprint has no chance of becoming law. But the plan sets the stakes for a bigger fight over raising the federal debt limit and the nation's fiscal trajectory. It also serves as a kind of campaign preview for Biden's expected 2024 re-election bid. And The Times reports that the Manhattan District Attorney's Office has signaled to Donald Trump's lawyers that Trump could face criminal charges for his role in the payment of hush money to a porn star. Prosecutors offered Trump the chance to testify next week before a grand jury. Such offers almost always indicate that an indictment is close. Any case would mark the first time a former American president is indicted

and could upend the 2024 race in which Trump remains a leading contender. in which Trump remains a leading contender. Today's episode was produced by Rob Zipko, Shannon Lin, and Ricky Nowitzki. It was edited by Liz O'Balin with help from Lisa Chow and contains original music by Marian Lozano, Dan Powell, and Rowan Nemisto and was engineered by Chris Wood. Our theme music is by Jim Brunberg

and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you on Monday.