Proposed Judicial Reform in Israel: Recalibrating the Relationship between the Legislative, Executive and Judicial Branches
The Israeli government’s recent proposals for judicial reform have pitted liberal and secular left-wing and centrist elements in Israeli society against their conservative, religious, and nationalist right-wing compatriots, and have mobilised members of the general public, military reservists, trade unionists, healthcare providers, business owners, and university academics, among others, in the largest ever anti-government mass protests in the nation’s history. Dissent has not been confined to opponents of the ruling coalition’s actions. Former army general Yoav Gallant, Defence Minister and Likud Party member, spoke out against the reforms on 25 March 2023, claiming national security concerns, only to be sacked by Prime Minister Netanyahu the following day. Writing on Twitter on 27 March, President Isaac Herzog called on the government “to stop the legislative process immediately”, in the interest of “unity of the people of Israel.”
Israel lacks a formal written constitution. In its place, a constitutional framework is provided by a set of thirteen quasi-constitutional “Basic Laws”. The 15-member Supreme Court has an important role as an interpreter of this body of legislation, as High Court of Justice and final Court of Appeals. The court has, however, become the target of coalition-instigated reform of what is perceived as a liberal, elitist, interventionist, and unaccountable institution-one that is prone to passing judgements which are out of step with the views and ideals of wider Israeli society.
The story begins with the swearing-in on 29 December 2022 of Likud Party leader Benjamin Netanyahu, Israel’s longest-serving leader, to take charge of Israel’s 37th government in his sixth incarnation as Prime Minister. In great haste, the new government’s judicial reform proposals were then made public on 4 January 2023. Large crowds gathered in Tel Aviv on 7 January and protests gradually spread to other parts, culminating in the launch of a historic general strike.
The coalition’s proposals are intended to clip the wings of Israel’s independent highest court, ostensibly to restore the balance of power in favour of elected and legitimate representatives of the people in the legislature. Under proportional representation, religious and nationalist parties exert disproportionate influence on Israeli politics, holding the casting vote in fragile multi-party coalition governments with slim majorities, which includes the current Netanyahu government. The architect of the Judicial Reform Bill 2023 is Deputy Prime Minister and Justice Minister Yariv Levin (Likud Party). Prominent backers of the bill include National Security Minister Itamar Ben-Gvir (Otzma Yehudit, or Jewish Power) and Constitution, Law and Justice Committee Chair Simcha Rotman (Religious Zionist Party). The bill is seen by its critics as a means of weakening powers of the judiciary and watering down the court’s balances and checks on the Knesset, the unicameral Israeli legislature, and on the coalition government. Furthermore, on 24 March, attorney-general Gali Baharav-Miara pointed out that Netanyahu has a conflict of interest in his backing for judicial reform, facing as he does an impending corruption trial. Netanyahu himself alleges a witch-hunt, stating that the charges are fabricated and politically motivated.
Currently, the Supreme Court of Israel has the power to veto any laws that ar passed by parliament but which it considers unconstitutional. Under the reforms, an “override clause” will allow such a court veto to be overridden by a simple majority of 61 in the 120-member Knesset. Particular matters of contention for the coalition include the court’s use of its powers to block the expansion of Jewish settlements in the West Bank and East Jerusalem and the exemption of Ultra-Orthodox Jews from compulsory military conscription.
Over time, the coalition believes that a more diverse and pliable bench of judges will be emerge. Their appointments will be facilitated by changes to the composition of the nine-member Judicial Selection Committee. At present, the membership consists of three Supreme Court judges (including the President), two Israel Bar Association representatives, two ministers (including the Minister of Justice), and two members of Knesset. Originally seeking a majority of 7 to 4 in an expanded committee, the government has since settled for a one-seat 5 to 4 majority instead-to achieved by replacing the two representatives of the bar by two “public representatives” who will be chosen by the Justice Minister.
Under the reforms, the Supreme Court will no longer be allowed to apply the standard of “unreasonableness” in striking down executive decisions or Knesset legislation. Most recently, these powers have enabled the court to help remove Aryeh Deri, leader of the Shas party, from Netanyahu’s cabinet in January 2023, on the grounds of his recent suspended sentence for tax offences. Finally, ministerial legal advisers will hitherto become political appointees, with a strictly advisory role, divested of any decision-making powers.
The situation in Israel has parallels in other countries where there is a widening ideological divide between the judiciary and the political leadership, particularly in liberal democracies prone to authoritarian traits. There is an important precedent in America, where the judiciary has for long been politicised at all levels.
The unprecedented scale of the protests has temporarily put the reforms on hold, but without any obvious change of direction. The coalition government survived a no-confidence motion in the Knesset on 27 March, by a margin of 59 votes to 53. The same day, Netanyahu nonetheless delayed the legislation, to prevent “a civil war”, at the same time staying unbothered by pressure from international leaders to tone down the reforms. In a nationally televised address, he said: “I have decided to delay the second and third reading in order to reach a broad consensus.” When Knesset resumes activity on 30 April, after the spring recess, it is to be hoped that there will indeed be an attempt at negotiation and compromise. Only time can tell.
Ashis Banerjee