The angry divide in Israel over the rule of law and religion.

The angry divide in Israel over the rule of law and religion. A broad swath of Israelis says the government’s proposed judicial reforms erode the foundations of democracy.

Financial Times, Andrew England and James Shotter in Jerusalem FEBRUARY 28 2023

“I am the Zionist dream!”

So said Ivo Spiegel, shouting with passion and fury above the din of drum beats and chants of “no to dictatorship” as Israelis gathered in Jerusalem to protest against prime minister Benjamin Netanyahu’s government.

The point Spiegel wanted to make was that he was no radical, but a patriot: a proud citizen who moved to the Jewish state from Switzerland more than three decades ago, lived in a kibbutz and became a tank commander during his national service.

Yet this month, the 50-year-old neuroscientist joined an estimated 100,000 Israelis in the city’s largest demonstration in years. He fears for the future of the nation that he chose to make home, worried by the determination of the most far-right government in Israel’s history to barrel ahead with judicial reforms that a huge swath of Israeli society fears will severely undermine one of the key pillars of Israel’s democratic system.

“What this is about is the politicisation of the justice system and whether the separation of powers will be held up,” says Spiegel. Their argument that the judiciary is a “fortress of the elite” is a “hoax,” he adds. “It’s a planned campaign to go after everybody who does not agree with their far-right, borderline fascist worldview.”

For two months, Israel has been gripped by an increasingly bitter battle between an alliance of far-right nationalist and religious camps driving the proposed reforms and those against. It is a crisis that has underscored the deep polarisation in society as the country has lurched to the right during Netanyahu’s more than two-decade dominance of politics.

The key battleground is over judicial reform, but much more is at stake in what many describe as a battle for the soul of the nation. “It’s not [just] judicial reform, it’s deeper, broader than this. It’s about our identity, it’s about what is Israel,” says Tzipi Livni, a veteran politician who began her career in Netanyahu’s Likud party. “It’s a battle for Israel’s soul as a democracy.”

In a state that has no written constitution nor an upper house, the judiciary, and the Supreme Court in particular, has historically been considered the vital check and balance on political power, as well as the defender of civil rights.

Israeli demonstrations were held on the day lawmakers started voting on judicial reforms last week. Benjamin Netanyahu and his supporters justify the reforms as a long overdue process © Ilan Rosenberg/Reuters But Netanyahu and his coalition allies want politicians to hold more sway over the court. Their proposed changes include giving the government control over the appointment of Supreme Court judges and granting the Knesset the power to override court rulings that strike down laws.

Netanyahu and his supporters justify the reforms as a long overdue process to rebalance the power between the executive, legislative and the judiciary. He is showing few signs of compromise and last week accused those protesting of ignoring the will of the people.

But the government’s critics are adamant that the democratic foundations on which the state was built are under threat. They fear the reforms would allow the government to trample over Israelis’ rights and enable ultraorthodox and religious Zionist groups to deepen the role of religion across society.

It could also further empower the ultranationalist Jewish settler movement to expand its footprint across occupied Palestinian territory at a time of spiralling violence, as Israel forces conduct almost daily raids in the West Bank and attacks on Israelis increase.

The opponents come from many sectors of Israeli society; former defence officials, retired central bank governors, tech executives, architects, bank bosses, doctors and academics have added their voices to the anguished warnings from legal experts about the path their nation is on.

Israel has been riven by polarisation and crisis before; in 2005, when the government of the day infuriated Jewish settlers by withdrawing from Gaza; in 1995, when Prime Minister Yitzhak Rabin was assassinated by a rightwing Israeli Jew over the Oslo peace process.

But this time the dividing line is over the character and values of the Jewish state as it prepares to mark its 75th anniversary.

“Law-by-law, they will change everything,” says Naama Lazimi, a Labor party lawmaker. “It’s more than a battle, it’s our new independence war.”

An ‘opportunity for believers’

Many say the crisis was triggered by Netanyahu’s decision to form an electoral alliance with extreme ultranationalists previously on the fringes of politics.

The divisive veteran premier, who is on trial for corruption, returned to power in December by manufacturing a coalition dependent on ultraorthodox parties and ideologically driven religious Zionist leaders.

These include Itamar Ben-Gvir, who in 2007 was convicted of inciting for racism and is now Netanyahu’s national security minister, and finance minister Bezalel Smotrich, a self-declared homophobe whose Religious Zionist party is one of the main drivers behind the legal reform.

Both men live in settlements in the occupied West Bank that most of the international community consider illegal. They represent the religious nationalist settler movement and support the annexation of Palestinian territory. Ultraorthodox leaders hold other key posts, including the interior and religious affairs ministries.

After last year’s election — the fifth in less than four years — the coalition’s 64 seats in the 120-member Knesset are split between Likud, with 32, and the ultraorthodox and religious Zionist parties.

In coalition agreements with the parties, Netanyahu committed to a number of policies that would have a far-reaching impact on Israeli society, including expanding the powers of Rabbinical courts and tightening rules around religious conversions and immigration.

He also pledged to annex the West Bank “while choosing the timing and considering the national and international interests of the state of Israel”. 

Since winning the election last year, the coalition has drafted legislation on a number of fronts, ranging from the legal reforms to changes that allow people convicted of crimes, but spared jail time, to serve as ministers. It has also legalised nine Jewish settler outposts deep in the West Bank, which even Israel had deemed to be built illegally.

Simcha Rothman, an MP with finance minister Bezalel Smotrich’s Religious Zionist party, in discussion about changes to Israel’s judiciary, at the Knesset, Israel’s parliament, last month © Maayan Lubell/Reuters Simcha Rothman, a MP with Smotrich’s Religious Zionist party, who heads the Knesset’s justice committee and is an architect of the planned judicial changes, considers the moment a “great opportunity” for “the believers”.

“What brings together the ultraorthodox, a religious Zionist like me [and] a secular like Netanyahu . . . is the deep belief that Israel is and should always be the homeland of the Jewish people,” he says.

Rothman says the legal reforms are needed to rein in the “unchecked and unbalanced” powers of judges. He blames the Supreme Court for having a “big part in radicalising” Palestinians of Israeli citizenship, and argues that in its current form it can block parents’ autonomy over how they educate their children, and even economic policies.

He complains that Jewish aspects of the state have been eroded, with “progressive elites” staging a “power grab in culture and academia”. He says an Israeli child can spend a year in school without opening a Bible and condemns a 2020 Supreme Court ruling that it was OK for people to bring non-kosher food into hospitals during Passover. In his mind, “Israel was helpless against trends that would make Israel lose its Jewish identity”.

“I think it’s time for the public in Israel to decide if they want to be a country ruled by its people or by its judges,” Rothman says. “A constitutional moment is always some kind of a crisis, but it’s very important.” The government’s goal, he adds, is to “bring Israel back to normality”. 

Designing social change

Religion has played an important role in Israel since the modern state was founded in 1948 under David Ben-Gurion, a secular socialist who made concessions to minority orthodox and ultraorthodox Jewish people to unite the nation.

Under the so-called “status quo”, marriages, divorces and family law fall under the jurisdiction of Rabbinical courts; Jewish dietary laws apply in state institutions; the ultraorthodox have autonomy over their education, as do all Jewish groups; and in most cities, public transport and businesses close on the Shabbat, or the Sabbath day.

The 1948 Declaration of Independence pronounced that the new state would “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”. But Israeli parties failed to agree on a constitution, and instead the nation’s leaders and institutions are guided by a set of quasi-constitutional “basic laws”. 

Over time, two distinct political camps emerged, the secular centre-left, who were the majority at independence and ruled the country for the first three decades, and the growing religious right.

The latter cite the roots of the current crisis to around the 1990s, when Aharon Barak became president of the Supreme Court, a few years after the Knesset passed a basic law that related to human rights.

In the eyes of the far-right, it marked the period of the Supreme Court becoming more activist, and the human rights law was used to overturn laws on issues ranging from the detention of asylum seekers to a law granting the Israeli state immunity from compensation claims from Palestinians injured by the security forces. Since 1997, the court has struck down legislation on 22 occasions.

“The balance was fine from the beginning of Israel till the eighties when the Supreme Court decided to change it,’” Rothman says.

As he became Israel’s longest serving prime minister, Netanyahu successfully steered the country further to the right, talking tough on the Palestinians and championing his security credentials while overseeing a period of economic prosperity.

Today, about 62 per cent of Jewish people define themselves as being on the right, according to the Israel Democracy Institute (IDI), a think-tank, with the highest numbers among those aged 18-34.

Netanyahu also sought to delegitimise his opponents with constant tirades against them, particularly the marginalised left. He has also railed against the police and the judiciary after being investigated and subsequently charged with bribery, fraud and breach of trust.

“It’s like 20 years of the Trump government, but more sophisticated,” says Lazimi, the Labor MP. “‘[The right is saying] we are not Jews, we are not Zionists, we are traitors.’”

Labor, for years the leader of the government and once led by Israeli political giants such as Golda Meir, Rabin and Shimon Peres, won just 3.7 per cent of the ballots in last year’s election.

Another phenomenon that has altered the Israeli political landscape has been the expansion of the ultraorthodox community, or Haredim, which accounts for about an eighth of the population and is the fastest growing group in Israel as Haredi families typically have many children. The Haredi are expected to account for 16 per cent of the population by 2030 and a third by 2065, according to IDI.

Traditionally, their focus was on protecting their autonomy and securing government funding and benefits for their community. But as their population has swelled, so too have their political ambitions, analysts say.

“For many years, the ultraorthodox were unwilling to serve as cabinet ministers in the government at all,” says Shlomit Ravitsky Tur-Paz, an expert at IDI. “Even when they had the political power to do so, they made the ideological statement that, ‘We cannot lead a country which is not governed by Jewish law.’”

Now, she adds, “They not only want to serve as ministers, but they feel that their power should be unlimited. When they speak publicly, they say that they don’t [want to] change the public sphere, but in reality, this is exactly what the policies they are proposing will do.”

The Haredi in government say they do not want to enforce their religious beliefs on secular Jewish people. “Other people are trying to describe us as if we are going to force people to wear kippahs, as if we don’t want to see women in the streets . . . but it’s not true,” says Meir Porush, a member of the ultraorthodox United Torah Judaism party, which has seven seats in the coalition.

“We will allow women and men to walk together on the streets. If you ask me if this is what I want to see in my holy land, no [it isn’t]. But 60, 70 per cent of the people are secular here.”

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Porush, who is a rabbi and the minister of Jerusalem and tradition, says there are a “bunch of laws to fix up that would be good for our constituents and our communities”, citing religious courts that deal with disputes between wives and husbands as an example.

Porush, whose father led a huge protest against the Supreme Court in 1999 accusing it of “antisemitic” decisions, says he supports the legal reforms because the Supreme Court has “ruined the status quo”. 

His community has repeatedly clashed with the judiciary as its leaders have battled to maintain the 75-year exemption from mandatory military service for young Haredi if they study in yeshiva religious schools.

“I want to go and strengthen tradition. That is my goal. My goal is not to get the people to change what they want to do,” Porush says.

Liberal defiance

Many Israelis, however, worry the religious and ultranationalists in government could drive an agenda that will affect myriad aspects of their society, from the justice system to education.

Another of Netanyahu’s appointments that triggered an outcry was that of Avi Maoz. He was named a deputy minister in the prime minister’s office, which would have given him powers over some school extracurricular activities, and was supposed to head a Jewish identity body. But he resigned late on Monday saying he did not believe the coalition deal would be honoured. 

“There is definitely fear that there’s going to be religious coercion,” says an opposition figure, who asked not to be named. “Religious coercion will turn this country upside down, it will light up liberal Israel.”

The dark joke in playgrounds in Tel Aviv, Israel’s liberal commercial hub, is that girls should be playing as much football as they can “because it’s very hard to play in a long skirt,” he says.

Livni says any shift to a more religious state cannot happen overnight, and can be checked “if we keep the basics of Israel as a Jewish democratic state”.

“But if you erase the democratic nature, and they explain the Jewish state means a religious state, not just a national perspective, then we are having a problem,” she says. “How this will be translated into legislation, we don’t know yet.” Asked if she was worried, Livni says that is the “understatement of the year . . . I’m horrified, sad.”

If there is a bright spot amid the crisis, Livni says, it is that liberals have found their voice after a string of elections that became referendums on Netanyahu rather than policy debates.

“After many years, people feel proud to be liberals . . . and we know how to fight and we are not these weak guys sitting in a café in Tel Aviv,” she says. “The first demonstration was the day my grandson was born, and it was the same feeling, ‘What kind of country am I leaving him?’”

This story was updated to include news of Avi Maoz’s resignation