Massive protests have rocked Israel as the country’s Netanyahu government is ploughing ahead with its proposed judicial ‘reforms’ that are allegedly purported to undermine relative autonomy of the Judiciary and virtually authorize Israeli government to override the Supreme Court’s decision on constitutionality of laws, taking away the court’s ability to judge legislation and government decisions for reasonability, and giving total control of appointment of judges to the Executive. On 20 February 2023, a little after midnight, Israel’s parliament, the Knesset, passed two Bills that seek to ‘‘overhaul Israel’s Judiciary’’ after garnering a majority of 63 to 47 votes in a 120-member parliament.
It is notable that Israeli PM Netanyahu, who is under investigation on multiple counts of corruption and other charges, claims the reforms to be necessary to rebalance the different branches of the Israeli government. Obviously, if the bills are enacted as laws, he himself will be a big beneficiary. According to The Guardian, the leading British daily, protests in Israel are a weekly sighting on Saturdays since Prime Minister Benjamin Netanyahu and his far-right allies came to power in December 2022. However, after Justice Minister Yariv Levin, a close confidant of Netanyahu unveiled the ruling coalition’s proposal to overhaul the country’s legal system in the first week of January, the protests intensified.
Details of the Bills
The first Bill proposes to take away the Supreme Court’s power to strike down Israel’s Basic Laws, ‘‘which function as the country’s constitution’’. The other Bill would allow the government to choose judges by altering the composition of a collegium-like ‘‘nine-member committee that selects judges’’. Both Bills are for increasing government control over judicial appointments and blocking courts from reviewing Basic Laws have been approved in their first readings, the Times of Israel has reported. The procedure for the passage of Bills in the Knesset is marked by three readings of the Bill. After a bill is approved in the first reading, a Knesset committee prepares it for the second and third readings or proposes to remove it from the agenda, as laid down in the legislative process mentioned on the Israeli parliament’s website.
Once the committee approves a Bill for a second and third reading, the committee holds another debate on the Bill, followed by voting separately on both readings. Only after passing all readings in the Knesset ‘‘plenum’’ or committee, can a Bill become a law in the Book of Laws of the State of Israel. Hence, both ‘‘judicial reform’’ Bills will now return to the Knesset’s Constitution, Law, and Justice Committee for discussion and will be followed by second and third readings, which must be cleared to ultimately pass the laws.
According to the Associated Press, the Israeli government seeks to use the power to override the Supreme Court to get rid of rulings ‘‘outlawing Israeli outposts on private Palestinian land’’ and curtailing social reforms. These ‘‘judicial reforms’’, as stated above, will give the Legislature unbridled power and immunize it from any system of checks and balances. However, its supporters stress the need to take away power from an unelected Judiciary and instead hand it over to elected legislators who represent the will of the people. This is what is the crux of the issue. It is imperative to understand why the capitalist-imperialist governments today are so keen to curtail power of Judiciary and make it virtually subservient to the Executive under the garb of respecting supremacy of parliament as an elected body.
Separation of Power as envisaged in bourgeois democracy
As we have explained many times in Proletarian Era, the modern parliament and the bourgeois parliamentary system were introduced during the advent of bourgeois democracy as a political superstructure of capitalism by overthrowing feudalism and monarchy to establish their own rule through the bourgeois democratic revolution. The bourgeoisie was then a progressive force for society to advance; they pleaded for equality- liberty and fraternity, albeit in the bourgeois sense. It then stood for individual freedom, freedom of expression, freedom of association and freedom of people to choose their own government; they promoted a laissez-faire economy with free competition between individual capitalists. Hence the fundamental premise of emerging bourgeois democracy was: Not a few landlords or monarchs would rule the country. Rather people hold the sovereign power to rule over their country. As direct rule of people is not feasible, there arose the concept and method that people must elect their representatives to take charge of Legislature and governance. Parliament became the house of those representatives of people and the parliamentary system of governance gave effect to the principle of rule of people, again in bourgeois sense. In this parliamentary democracy, though a handful of people actually formed the government, they ruled with the consent of people, and they remained accountable to people for their activities. So, it was a ‘Rule by Consent’. At the same time, it also provided the ‘Right to Dissent’, and recognized the legitimacy of the numerical minorities in the parliament to dissent. It then offered ‘freedom of expression’ and did not put any fetter on thinking freely. That is why, bourgeois parliamentary government was called government ‘‘Of the people, for the people, by the people’’ by Abraham Lincoln. To ensure that the government gives effect to people’s aspirations—demands and desires in totality, it was fully accountable to parliament. In turn, parliament was under obligation to be accountable to people themselves. In other words, sovereignty of the parliament was contingent upon the sovereignty of the people.
At the same time, to prevent democracy sliding down into ‘mobocracy’, the founding fathers of bourgeois democracy also called for development of people’s political consciousness, so that they were aware of their rights and responsibilities, capable of judging the performance of the government and parliament. And this was envisaged to be attained through constant debates and discussions on thousand and one problems of people’s life, which would keep the activities of parliament and the government open to people for being subject to scrutiny. The three pillars of the bourgeois democracy were Judiciary, Legislature and Executive (police, bureaucracy). An elected government was subject to change depending upon people’s mandate whereas the three pillars were relatively permanent organs of the state. There also arose the concept of a Fourth Estate, the free Press, which was assigned the responsibility of constantly gauging people’s opinions and even framing those which would help parliament to carry on its business in people’s interests. Later, in further elaboration of these concepts, men like Harold Laski, the well-known liberal democrat, maintained that there should be innumerable voluntary organizations of people beyond parliament to act as watchdog of democracy. Those organizations were viewed to help the people to keep parliament under constant vigil and scrutiny. Hence it was advocated that there ought to be unfettered freedom of association and freedom of expression to help people form those organizations and present their views and opinions. Those organizations were supposed to see to it that the members of parliament did not stop framing laws only for people but themselves abide by those laws. Those organizations were also viewed to opine on whether, under changed conditions, it was necessary to frame new laws to meet the demands and aspirations of people. These voluntary organizations included the political parties, trade unions, associations and unions of people of different walks of life, who through their extra-parliamentary movements involving people were assigned the task of raising demands on burning problems of life and keep constant pressure upon the government, parliament and its members. Thus, in the heydays of bourgeois democracy, the bourgeoisie stood not only for democratic right to movement, but they also even guaranteed the right for extra-parliamentary movements of people on democratic demands. There were even thoughts and discussions on whether people should enjoy the right to propagate cause and need of rebellion. People’s opinions and people’s extra-parliamentary movements ‘on the streets’ were considered decisive in providing people with the power to assert upon parliament and the government.
Even, to prevent bourgeois democracy from deviating from its declared objectives, it was necessary to ensure that there was no concentration of undue power in the hands of a single organ of the state. So was formulated the theory of ‘Separation of Power’ to specify specific duties and tasks of the three relatively permanent pillars of the state. A system of ‘check and balance’ was also put in place to ensure there is no overlapping of functions among the three organs nor could any organ overstep its jurisdiction to intervene in the working of the other organs. Thus, even though parliamentary democracy evolved to uphold the interests of the rising bourgeoisie, it then was conducive to overall social progress and reflected people’s aspirations to a large extent.
Bourgeois democracy is stripped of its essence
But this ideal situation was short-lived as capitalism also stood on exploitation of man by man. Hence, equality, fairness and sense of equity could not have a permanent place in it. Very soon the exploitative character of capitalism started being manifested and the declarations of bourgeois democracy began to be violated. More capitalism became crisis-ridden because of its inherent laws, the more oppressive face of the ruling bourgeoisie began surfacing and people’s rights and freedom were curtailed slowly but steadily. Once capitalism entered the stage of monopoly and then attained the stage of imperialism, the lofty ideals of bourgeois democracy and its operative principles are being given a decent burial. As replacement, concentration and consolidation of economic power in the hands of a few monopolists and centralization of political power in the hands of the Executive and the state became glaringly manifest. Most important is the fact that process of smooth electioneering to reflect free and fair verdict of the people has been virtually abolished. Election is being manipulated by the ruling monopolists by flexing money-muscle-media and administrative muscles to have the party or parties of utmost subservience to them anointed to power. Bourgeois-petty bourgeois parties are picking up candidates from among those elements who can intimidate people, who frighten people by their look, conduct and activities, who have antecedents of smoothly extorting people, who have criminal records or even conviction on charges of fraudulence, multi-crore scams, even rape and murder. Election campaigns have been reduced to blood-shedding fratricidal clashes on dirty grounds of casteism-racism-religious fanaticism; where those are less prominent, the stage is occupied by armed gangs of goons acting for different contesting parties openly and unhesitatingly, unleashing a reign of terror-threat-intimidation to prevent genuine electors from taking part in the process. Allegations of rigged election are heard from many countries now. Everyone is aware what happened after last US Presidential election when followers of defeated President Trump raided on the Capitol building with a view to countermanding the counting process. In such a situation, parliament or Legislature has virtually been reduced into an abode of power-monger greedy corrupt bourgeois politicians to whom self-aggrandizement matters most, not people’s interest. Moreover, the ministers in collusion with a pliant spineless bureaucracy now constitute the Executive.
On the other hand, haunted by the fear-complex of anti-capitalist socialist revolution that is historically ordained, the ruling monopolists are strengthening the military which would ultimately be used to thwart the revolution. In fact an industrial-military complex is ruling the roost in all imperialist-capitalist countries. Thus, Military has emerged as a pillar of the decaying bourgeois democracy in place of Legislature that has virtually become a showpiece. With Legislature becoming defunct and the capitalist-imperialist state depending more and more on Military, the three pillars now consist of Executive (ministers and bureaucracy), Judiciary and Military.
Overlordism of Executive
As we have been seeing, as the days are rolling by, the Executive is emerging stronger and centralizing all power in its hand which is the class design of capitalism-imperialism in its decadent moribund acutely crisis-ridden state. So, bourgeois democracy is getting substituted by fascist autocracy. Hence people’s rights are being curbed; codes, norms and practices of bourgeois democracy are merrily trampled underfoot. In such a situation, a conflict is arising between the Judiciary and the Executive. The Judiciary also functions within the framework of capitalist system and hence, in the ultimate analysis, is bound to defend bourgeois class interest. As part of the system, it is also not remaining insulated from the maladies and aberrations of capitalist degeneration. Yet, with whatever little of its intended character is still in existence, people feel that they would get justice if the door of Judiciary is knocked at. Also repeated attempts to reduce the juridical process subservient to the Executive is antagonizing a section of the honest jurists in all countries—whether Israel or India. So, they are raising their voice against the Executive intervening in judicial functioning.
Israeli or Indian contexts are same
In view of the perspective elaborated above, the rising antagonism between the Executive and Judiciary is laid bare, both in Israel and India. Besides the widespread protests by Israel’s population and the opposition parties, critics fear that proposed ‘‘judicial reforms’’ will give the Legislature (in reality, the Executive) unbridled power and immunize it from any system of ‘check and balance’. However, Netanyahu and his party professing fascist autocratic credentials stress to take away power from an ‘unelected’ Judiciary and instead hand it over to elected legislators (a bunch of self-seekers allegiant to Zionist regime) who, they falsely claim to represent the will of the people.
But who does not know that Zionist Israel is the front office of the US imperialists and autocratic to the teeth. During Netanyahu’s rule, not only the Palestine liberation struggle has been facing inhuman assault but even the Israeli people find their lives deteriorating on every count. Poverty and income disparity in Israel are among the highest in the developed world. Half of Israel’s population does not even reach the bottom of the income tax scale and pays no income tax at all. Nearly 90 percent of Israel’s total income tax revenue is earned by just 20 percent of the population. Bank of Israel Governor Amir Yaron is said to have warned ministers of late that an economic crisis could break out at any moment, amid mounting concerns over the government’s pursuit of sweeping changes to the judiciary, which has spooked investors and entrepreneurs in recent weeks and sparked fears of an economic downturn. In fact, sporadic people’s protests are also erupting in various parts of Israel. One likely reason why international media outlets do not cover these stories is that if they did, such reports would profoundly challenge the current narrative the very same outlets have long been peddling about Israel: that Israel’s otherwise well-functioning and robust democracy is being threatened by Prime Minister Benjamin Netanyahu’s new extremely rightist government. The dominant narrative about Israel currently circulating in the Global North is informed by the familiar trope that Israel is ‘‘the only democracy in the Middle East’’. As such, reports that are seemingly criticizing the new Netanyahu government as ‘‘undemocratic’’ are actually serving to whitewash the inherently undemocratic nature of Israel and its leading institutions, including its Supreme Court.
In India also, a tussle is going on between the Supreme Court and the BJP government over selection of judges. At present, the judges are selected through the collegium system where sitting judges headed by the Chief Justice of India (CJI) appoint judges to the constitutional courts. But now the BJP government wants the government should be a party to the selection process. Accordingly, the government has proposed to form a constitutional body named the National Judicial Appointments Commission (NJAC) to replace the long-standing Collegium system of appointing judges. As per NJAC, the selection committee would comprise the CJI as ex-officio chairperson, two senior-most Supreme Court Judges, the Union Minister of Law and Justice, two eminent persons from civil society to be nominated by the Prime Minister and the leader of the opposition and as ex officio members. Why is this proposal? Because the government on the pretext of making the system more transparent and involving one elected representative, wants to step into the jurisdiction of the Judiciary and seek the elicit verdicts suited to its interest by nominating pliable persons in the selection process. In fact, there is a persistent baleful attempt to create a ‘committed judiciary’. A discourteous judge is a public menace. Confident that he knows the law and the facts, conscious of his own exclusive devotion to justice, he disdains the assistance of counsel at the Bar and regards all legal argument as a waste of his precious time. The law irks and irritates him, and it is only because of the compulsion of his oath of office that he listens to these ‘‘technicalities’’. Indira Gandhi during her prime ministership made an attempt to this effect. Now the BJP is trying to woo the judges by promising them coveted posts like state governors, chairpersons of commissions or even nomination to Rajya Sabha on retirement. Their policies effectively suborned and undermined the judiciary. NJAC is a further step in that direction; and the Supreme Court, as an institution, assisted in the process. Several of its judges enthusiastically collaborated and secured rewards.
It is pertinent to recall that Thomas Jefferson, one of the exponents of bourgeois democracy, held: ‘‘The judiciary… is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity…The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that.’’ (letter to George Wythe, 1776. Papers 1:410) But these enshrined principles are now thrown to the dust. Netanyahu’s proposed legislative changes will allow his government to target even the Jews who do not agree with its political ideology and to undermine the judicial branch’s ability to fight corruption. So, both Israeli and Indian rulers are sailing on the same boat in so far as establishment of a pliant Judiciary is concerned.
Nefarious class design of imperialism-capitalism to be foiled
So, weakening of juridical process and concentrating all power in the hands of the Executive which now include power-monger privilege-seeker greedy bourgeois ministers and legislators as well is a nefarious class design of the imperialist-capitalist rulers to wipe off even the last vestiges of democracy and firm up fascist autocracy.
That is why, the Israeli people are out on the streets. It is also incumbent on the right-thinking democratic-minded Indians to staunchly oppose the move of the BJP government, of course at the behest of the ruling monopolists, to turn the Judiciary as an appendage to the Executive. While extending full support to the fighting Israeli people, we call upon the conscientious countrymen of our country to realize the inherent danger of dismantling the collegium system and come forward to thwart it.
