From the 'Hungarian Blitz' to the 'Polish Salami': The Judicial Overhaul in Israel as a Populist Project

Abstract

This chapter describes the ‘judicial overhaul’ – a major set of reforms to the judicial system – promoted by Israel’s 37th government, during the period between November 2022 and September 2023, and the unprecedent civil protest movement the resisted the judicial overhaul. This protest movement forced the government to change its course of action: from a quick blitz to an incremental salami tactic. The chapter explains why these proposed reforms posed a serious threat to Israel's democracy and argues that they should be regarded as a populist constitutional project aimed to capture state institutions, weaken mechanisms of checks and balances and provide the executive with absolute powers. It also analyzes the abusive borrowing tactics taken by the govern – i.e., the manipulation of borrowing different constitutional elements from various countries in order to justify the reform, without taking into consideration other elements or the other system in its entirely. It further assesses the main challenge when constitutional capture takes the form of an incremental process ("the salami tactic"), and calls for a more contextual judicial review that takes into consideration the broader context of democratic erosion within which the constitutionality of a particular law or a constitutional amendment is reviewed.

Keywords: Israel, Judicial Overhaul, Constitutional Reforms, Abusive Constitutionalism, Populism, Democratic Erosion, Protest, Unconstitutional Constitutional Amendments, Reasonableness