RUTHFULLY YOURS

What began as Saturday evening mass protests against the government’s judicial reform program have morphed into “days of disruption” and increasingly extreme behavior as demonstrators block highways, clash with police, blockade Knesset members in their homes, refuse to show up for reserve duty, and, in one instance, barricade the prime minister’s wife in a hair salon.

This has raised questions about the limits of protest and eyebrows about how the police deal with the lawbreakers, suggesting different sets of rules apply for different citizens.

Itzhak Bam, an Israeli attorney specializing in freedom of expression, told JNS: “What is interesting in this case is the extreme tolerance of the police. From my experience as a criminal defense lawyer in cases of illegal assembly, and we have had a lot of such cases here in Jerusalem, I am pretty sure that if they were right-wing protesters, or haredim [ultra-Orthodox Jews], or Arabs—any of these groups—the police would be much more assertive, or maybe aggressive, in preventing them from blocking highways.

“Why softer tactics are being used now is a good question to ask the police,” Bam said, adding that rather than one rule for everyone, there are “good” and “bad” protests with the police taking a different tack depending on who is doing the protesting.

It’s not always about politics, said Bam, noting that police were tolerant of protests in 2021 by disability rights groups seeking more state benefits. Though few in number, they blocked major highways and even railroads.

The courts’ perspective

Ran Baratz, former head of public diplomacy in the Prime Minister’s Office and founder of MIDA, an online daily conservative magazine in Hebrew, echoed the view that police are acting less aggressively than they did against protesters who blocked roads during the 2005 disengagement from the Gaza Strip.

Red lines regarding protests were worked out during the disengagement, but now “all those lines are being crossed. And everybody knows that there is no point in turning to the courts, because from the courts’ perspective, the protests are in their favor,” Baratz said. “These are the sansculottes, as they said in the French Revolution. These are the soldiers in the street.”

Bam said that Israel has the common law of illegal assembly, which says if three persons behave in a way that gives reasonable grounds to suspect they will cause a breach of peace, they are an illegal assembly and can be arrested. However, this law of illegal assembly has been narrowly interpreted by the lower courts so if the police make arrests, the prosecutors may not issue indictments.

The police also have a great deal of discretion in deciding when there is a breach of peace, he said.

Bam takes a broad-minded view of protests, telling JNS that he doesn’t view the blocking of highways as crossing a red line, even though it is illegal. He termed it “tolerable illegality,” an accepted kind of protest in Israel.

“In Jerusalem, anyone who wants to protest tries to block roads,” he said. “In such cases, the police may employ a great deal of force to keep the roads open. Again, in the case of the protests against the reform, I haven’t seen the police use the same amount of force.”

Even protests outside private homes should be allowed so long as there are appropriate limits, in Bam’s view.

“If someone is standing with a poster in front of a person’s home saying, ‘You are turning Israel into a dictatorship,’ that’s OK. In a democratic country, citizens have a right to raise their voice. It should be legitimate. The home area is not immune from protest.”

For Bam, the “sharp red line” is when protests become harassment.

“When your aim is to harass, it shouldn’t be legitimate. Nobody has the right to harass. And when you block an entrance or exit and confine a person to a hair salon or prevent someone from taking her special-needs child to daycare, that’s harassment,” he said.

He was referencing in the first instance the March 1 incident when Sara Netanyahu had to be rescued by hundreds of police after being trapped for hours by anti-reform protesters in a Tel Aviv hair salon, and in the second, a Feb. 20 incident in which protesters tried to trap Likud Knesset member Tali Gottlieb in her home so she could not attend a judicial reform vote in parliament.

“Find someone else to take the girl to school”

A video shows Gottlieb at her front door asking the protesters to let her take her autistic daughter to school. “Find someone else to take the girl to school, because you’re staying at home today, ma’am,” they said.

“The most troublesome thing here, and the most shocking, is the weakness of the condemnation. If the case was the opposite, if right-wing protesters had blocked a left-wing politician in her home and not let her special needs child go to daycare…all the media, all the political pundits and everyone across the political spectrum would be speaking about how it was such a violent act and should be condemned,” Bam said.

Police, according to reports, plan to indict Yigal Rambam, who organized the protest in front of Gottlieb’s home and another demonstration that day at the home of Yitzhak Wasserlauf, the minister for the development of the periphery, the Negev and the Galilee. Twenty activists locked their arms together with pipes, with one gluing his hand to the wall, to prevent Wasserlauf from reaching the Knesset. “So far I don’t think they were indicted,” Bam said.

Demonstrators, whose goal is to put pressure on the government to stop the passage of its judicial reform program, claim that the reform endangers Israeli democracy, and so justifies extreme measures. “We will disrupt public order in the face of a government that is trying to disrupt the democratic order,” demonstration organizers said at the start of the month.

Few, if any, question the protesters’ right to demonstrate. Even National Security Minister Itamar Ben-Gvir, arguably the government’s most right-wing member, on Sunday characterized most of the protesters as “good citizens” and defended the right to protest, drawing the line at what he called “anarchy,” such as blocking roads. Attorney General Gali Baharav-Miara recently blocked Ben-Gvir from issuing orders to the police regarding operations against the protests, although legally he’s in charge of the police. Ben-Gvir described the attorney general’s order as a “coup in all respects.”

The problem of the police imposing a different set of rules on one group of protesters over another is actually a symptom of a much more fundamental problem, one caused by the Supreme Court’s intrusion into areas normally reserved for the executive branch, Baratz said.

Normally, state power runs along a well-defined hierarchy, but the Supreme Court has blurred that line. “Currently, there is complete confusion. People really don’t know where power lies, and when I say people, I mean judges, Knesset members and government ministers,” Baratz said.

“Heads of state organizations like the police or the army are not sure who their bosses are, although it is well-defined in law. If there is some sort of clash between the executive and the judiciary, they say they won’t know whom they should obey, which is almost unheard of in a well-established democracy where it’s obvious that the executive branch is in charge.”

A recent example is the flip-flop of Israeli Police Commissioner Yaakov Shabtai, who removed Tel Aviv District Police chief Ami Eshed on March 9 at the behest of Ben-Gvir, who wanted a more robust response to the road-blockings. Gali Baharav-Miara froze the move on March 10 and the next day Shabtai apologized for removing Eshed.

“Legally, he should listen to Ben-Gvir. This is the formal law in Israel. It’s very clear. The minister of national security has by law the authority to remove a police officer who isn’t functioning,” Baratz said. He added that the protests have given the courts an incentive to muddy the waters still more, as the court has turned the Tel Aviv police chief into a kind of general in the war against supposed tyranny.

“Things that are very simple in legal terms and in separation of power terms have become confused, liquified, in the so-called great battle for democracy,” he said.

The judicial reforms will likely not be enough to remedy the situation and a constitution will probably be needed, Baratz said. “The crisis has been growing for 30 years and now it has finally burst with these protests.”