Updates

Update 01/23 #03

As readers are probably aware, Israeli has been experiencing an intense internal political debate about some proposed major reforms to the judiciary introduced by Justice Minister Yariv Levin earlier this month. The debate has prompted some angry accusations on both sides, and some very large demonstrations against the proposed reforms, such as the one in Tel Aviv last Saturday.

This Update looks at both sides of this debate, and the background to it.

We lead with Monash University academic and AIJAC research associate Dr. Ran Porat’s explainer on everything you need to know about the judicial reforms debate in Israel, and the legal and historical background to it. He details the exact terms of the reform proposals and the broad arguments for and against them. He also reviews Israel’s constitutional peculiarities, the growth of the power of the Israeli Supreme Court since the 1990s, and the backlash this has engendered among many Israeli groups. For all the basics you need to understand this debate, CLICK HERE.

Next up we offer a case for the judicial reforms from legal academic Avi Bell. Bell argues that the reforms will strengthen Israel’s democracy because the Supreme Court has been progressively supplanting parliamentary authority and has given itself powers unprecedented in any other democracy. He says polls show that this self-aggrandisement by the judiciary has lost the support of the public, and the reforms will simply return the role of the judiciary in Israel to one similar to other Western democracies. For his complete argument,  CLICK HERE.

An argument against the reforms comes from Yohanon Plesner, the head of the Israel Democracy Institute, and a former politician. Plesner argues that the Israeli Supreme Court is the only effective check on the otherwise almost absolute power of the ruling coalition in the Israeli Knesset, and the reforms will strip it of the ability to perform that essential role. He cites cases where the Court has acted to protect minority rights, and calls for a bipartisan effort to craft a less radical reform of the judiciary. For Plesner’s views in full,  CLICK HERE.

Readers may also be interested in…

• More strongly critical arguments against the judicial reform proposals from Israeli public intellectual Yossi Klein Halevi and Times of Israel editor David Horovitz.
• Arguments strongly in favour of the reforms from law professor Eugene Kontorovich and think-tanker David Weinberg.
• A good summary of the brouhaha over the Israeli Supreme Court’s decision to invalidate the appointment of Shas party leader Arie Deri as a minister, and his subsequent firing by Netanyahu, from BICOM.
• Political analyst Haviv Rettig Gur explains how Israel’s lack of a constitution and somewhat ad hoc system of government is the real source of the current dispute.
• Israeli intellectual Rabbi Daniel Gordis, who opposes the reforms but is critical of some of the more extreme claims opposing it, assembles some knowledgeable voices for and against the reforms.
• US academic analyst and former senior official Elliott Abrams takes on some over-the-top claims about the new Israeli Government, especially from Jewish sources.
• Australian writer Josh Feldman reveals the real reasons why so many Israelis voted for far-right parties at the last election. 
• Some examples from the many stories and comments now appearing on AIJAC’s daily “Fresh AIR” blog:
  • An AIJAC tribute to the late Senator Jim Molan, a friend of AIJAC and the Jewish community who passed away last week.
  • Two short videos from our recent AIJAC webinar with Shmuel Rosner – one in which he explains the survival prospects of the new Netanyahu-led Israeli Government, and another in which Rosner explains the reasons for the rise of extreme right-wing politician Itamar Ben-Gvir.
  • Last week’s AIJAC “week in review” slideshow. 

Israel’s constitutional crisis explained

Ran Porat

The Lens (Monash University), January 23, 2023

Three key players in the current judicial reform drama: Justice Minister Yariv Levin (L); Arie Deri (C), jiust disqualified from serving in cabinet by the Supreme Court; and PM Binyamin Netanyahu (R), who reluctantly fired Deri, but has backed Levin’s judicial reform plan. (Image: Amos Ben-Gershom/GPO)

An unprecedented constitutional crisis is brewing in Israel. It is an emotionally charged arm-wrestle pitting the judicial system and its supporters against the executive branch of the government.

In addition, because of Israel’s political system, where the government is formed on the basis of a majority in the unicameral Knesset (parliament), the legislative branch in contemporary Israel is almost identical with the executive government.

This conflict has potential long-range implications on Israel’s international standing, economy and its very essence as a Jewish and democratic state.

The origins of the crisis

Since the 1990s, the power of the judiciary vis-à-vis other bodies governing Israel has gradually yet dramatically increased.

Under the leadership of the Chief Justice Aharon Barak (1995 to 2006), a constitutional revolution unfolded. Motivated by the self-perception of the courts as the defenders of human and civil rights in Israel in the absence of a written constitution, Barak believed that no issue should be outside the jurisdiction of the courts (“Hakol Shafit”).

Instead of a constitution, Israel’s Knesset has enacted a series of ‘basic laws’ over the years, which enjoy a higher status than regular laws. The Supreme Court began to voluntarily apply the power of judicial review to disqualify laws and government decisions based on what the court saw as compatibility (or lack thereof) with basic laws – a power which is not granted to the judiciary under any statute or other document which is part of Israeli law.

The Supreme Court also began to impose a ‘reasonableness test’ in many cases – a vague and subjective test to determine whether public officials acted (or were about to take actions) in a manner which is ‘appropriate’, and/or ‘reasonable’ and/or ‘proportionate’ in a certain situation.

The backlash

Over the years a counter-camp has emerged to this growth in judicial power and activism.

The Supreme Court has actually been fairly restrained in exercising its newly claimed power: refusing to intervene in government actions or political moves in nine out of 10 cases brought before it and disqualifying only a handful of laws – 22 since 1997.

Nonetheless, bitterness over the cases where the court has intervened has been building up in mostly right-wing and ultra-Orthodox circles.

The court, painting itself as defender of human rights, has sided in some instances with positions considered aligned with the Israeli left – for example, reversing a bill which sought to block Palestinians from seeking compensation from the Israeli army (2006).

Conservative groups also did not see eye to eye with rulings that overturned government decisions on incarceration or deportation of asylum seekers and/or illegal immigrants between 2013 to 2020.

Ultra-Orthodox communities have been angry over the court’s repeated disqualification of political compromises forged with regards to the growing number of young religious men exempted from conscription to the army (mandatory in Israel for all 18-year-olds) so they can concentrate on their religious studies, whilst receiving state stipends.

Trials of high-profile public figures have added social tensions to the anger against the judicial system.

The most important of these is the ongoing trial of current Prime Minister Binyamin (Bibi) Netanyahu, who is facing charges of fraud, bribery and breach of trust over three separate cases.

Also sparking anger has been the two convictions (in 1999 for fraud, bribery and breach of trust; and in 2022 for tax evasion) of Arie Deri, the leader of the powerful ultra-orthodox party Shas, which champions ethnic Mizrahi Jews (originating from Arab or north African countries).

Deri’s legal troubles have led to allegations of discrimination and racism by elite Ashkenazi (of European ancestry) Jews in the attorney-general’s office and among the top judges – including only recently, after the Supreme Court disqualified him from serving as a Minister in mid-January 2023. As a result, Netanyahu, who has a long and close partnership with Deri, had to reluctantly fire him from office (Jan 22).

Such cases have translated into resentment among segments of the Israeli population over what they see as overreach by a few unelected judges into the political realm, without any legal or democratic mandate.

The Judicial overhaul

Late last year, a government was finally formed in Israel, elected after four stalemated elections in less than three years.

Following a narrow win in the most recent election on 1 November, Netanyahu recaptured his long-term position as PM – he has served in this role longer than anyone in Israel’s history. His new government is considered by many to be Israel’s most right-wing and religious coalition ever.

Early in January 2023, incoming Justice Minister Yariv Levin moved quickly to introduce a proposed program of comprehensive judicial reforms.

Collectively, these reforms are seen by their many critics as both “politicisation of the judicial system”, and stripping Israel’s unicameral parliamentary government of almost all checks on its power.

The reforms include several steps that together are aimed at reversing the extended powers of the courts.

• Changes in the selection process for judges to ensure politicians will dominate the process instead of judges and lawyers. The reforms would give the government an un-vetoable majority within the Judicial Selection Committee and also allow someone not currently a Supreme Court Judge to be appointed the Court’s Chief Justice.
• Radically limiting the Supreme Court’s ability to overturn laws enacted by the Knesset – for example, banning courts from reviewing basic laws; and insisting regular laws can only be overturned by the Supreme Court when at least 80% of all 15 judges on the court vote for disqualification.
• An ‘overcoming clause’ allowing the Knesset to overrule a judicial decision by having a majority of parliamentarians vote against it. The original text of the plan calls for a regular majority (61 out of 120 MKs) to be able overturn a court decision. As noted earlier, since the government always has a majority of MKs supporting it, that would mean that almost any Israeli government would be able to schedule and pass a vote to overrule judicial decisions it does not like.
• Barring the use of the ‘reasonableness test’ as the basis for judicial decisions.
• Changing the status and powers of the legal advisors in Ministries and other government bodies. Currently these advisors are tenured career civil servants, but the reform would convert them to “positions of public trust” – employees subordinated to the minister who can hire and fire them. Ministers would also not be bound by their advisors’ legal opinions.

A mass demonstration against the proposed judicial reforms, with an estimated 80,000 participants, in Tel Aviv’s Habima Square on Jan. 14. (ZUMA Press Inc / Alamy Stock Photo)

Protest and deep division

The opposition has angrily called Levin’s plan “the end of democracy” in Israel, and even floated civil disobedience as a legitimate response to it. Chief Justice Esther Hayut gave a fiery speech against the reform, while Levin replied by labelling the judges ‘a new unelected political party’.

Hundreds of thousands of Israelis have taken to the street across the country in protest on a regular basis. Leading right wing coalition members have made calls to arrest opposition leaders on charges of treason, while the hashtag #civilwar has started to gain popularity in Israel.

A battle over Israel’s essence

For both sides, this conflict has heavy implications for what they believe is the true essence of the State of Israel.

The pro-reform camp considers the courts a bastion of left-leaning elites who have taken it upon themselves to shape the state as progressive and secular, without any democratic public legitimacy behind them.

The opposition is extremely worried that the reform is a tool to aggressively create a religious, non-liberal state in which the powers of the government are effectively almost completely unchecked.

Many in the business sector and foreign policy experts are warning such a change would endanger Israel’s international standing – including especially its growing ties in the Arab world – and its thriving economy.

In recent days, attempts are being made to find a compromise – for example by President Isaac Herzog (in Israel the Presidency is a mostly ceremonial position, comparable to the Governor-General in Australia).

But the crisis is far from over, and constitutes a telling reminder of both the strong divisions within the Israeli body politic and the liveliness and intensity of Israeli democracy and the debates it produces.

Dr. Ran Porat is an Affiliate Research Associate at the Australian Centre for Jewish Civilisation, Monash University, and is also an AIJAC Research Associate.

Israel’s Judicial Reform Will Strengthen Its Democracy | Opinion

These cries are alarmist, hyperbolic, and simply lacking in historical context.

The new government’s judicial reform proposal has three key elements. The most important would give the Israeli Supreme Court explicit statutory authorization to overturn legislation, while also preserving the Knesset’s authority to legislate. A second element would slightly modify Israel’s existing process for appointing judges by a committee of public officials and sitting judges by adding more elected representatives to the committee. The third would reduce the ability of the Supreme Court to overrule elected officials’ decision on the grounds of the Court’s mere policy preferences.

The reform proposal has been a long time in the making. Israel has followed the British legal model since its founding—including parliamentary supremacy and the absence of a singular written constitution. In its early years, Israel’s Supreme Court was seen as liberal and activist, fashioning legal tools inherited from the British Mandate to protect basic rights and freedoms.

But some 40 years ago, Israel’s high court embarked on a program to gradually supplant parliamentary authority and make Israel’s legal authorities the most powerful in the democratic world.

Sometimes populist, sometimes progressive, and always self-aggrandizing, Israel’s Supreme Court has become uniquely juristocratic—unbound by any clear rules, and possessing power unprecedented in any other modern democracy.

The turning point in the Court’s overreach came in the 1990s, when it declared a “constitutional revolution,” giving itself unprincipled and unrestrained power to overturn parliamentary legislation. It was an unprecedented move for any Western democracy.

At first, the Court justified its power grab on the grounds that Israel’s Basic Laws—laws earmarked for inclusion in a possible future written constitution—had themselves become a quasi-constitution, permitting the Court to invoke constitutional authority to strike down ordinary Knesset-passed legislation. But over time, the Court placed itself above the Basic Laws too—not only by rewriting them, but also by declaring itself the final arbiter of whether they are valid in the first instance. In recent years, the Court has dismissed the Basic Laws framework altogether, announcing that it can strike down Basic Laws and other legislation for any reason it wants, such as finding the laws “too political” or “insufficiently deliberated.”

Armed with unbridled authority, today’s Israeli Supreme Court habitually implements its policy preferences over those of Israel’s legislators on foreign policy matters, military decisions, budgetary priorities, taxes, welfare benefits, radio and television programming, and every other notable governmental decision. This includes the power to hire and fire speakers of parliament, government ministers, army generals, and city mayors. The Supreme Court is currently deliberating whether to fire the new government’s treasury minister on the grounds that a “reasonable” government would have appointed someone else.

Perhaps most astoundingly, the Supreme Court posits itself as the final word on policy decisions, rather than deferring to the Israeli public or its elected representatives. The Court has deputized the attorney general and junior legal officers in this activism, giving them too the power to veto elected officials’ policies to which they object.

As such, “legal” clearance of government decisions has functionally become an ideological, rather than legal, review by legal advisors.

Once trusted, now less so? The justices of Israel’s Supreme Court in 2015, along with then PM Netanyahu and then President Rivlin (Photo: Spokesperson unit of the President of Israel, Wikimedia commons)

The Supreme Court was once Israel’s most trusted institution. But today, with the judiciary having cast off legal restraints, a majority of the public no longer trusts it. Recent polls show even more alarming disapproval of the rest of the deputized judicial system: Only single-digit percentages of the Israeli public voice confidence in the attorney general, government lawyers, and the police.

Unsurprisingly, calls for legal reform have been a facet of Israeli society since the “constitutional revolution” of the 1990s.

In 1994, Israel borrowed a constitutional technique from Canada, adding an “override clause” to one of its own Basic Laws. That clause permitted the Supreme Court to use that Basic Law to overturn legislation, while allowing the Knesset to restore the legislation to force by the vote of a majority of its members. Levin’s proposal is for a more general override clause, implementing a judicial reform that has been proposed for decades. His proposed clause would ratify some of the Court’s seized powers, while also reining in its gross overreach.

Contrary to the democracy doomsdayers, these measures would actually bring Israel closer in governance to other democracies, such as Canada and the United States. Ironically, they would also restore Israel’s democratic practices from before the 1990s-era “constitutional revolution.”

Until the most recent elections, calls for judicial reform came from all parts of the Israeli political spectrum. But with the reforms expected to be implemented under a right-wing government, partisan opponents now excoriate the very reforms they once supported as the purported downfall of Israeli democracy.

In reality, Israel’s radically democratic political culture is healthy and vibrant. Judicial reform will ensure it remains so.

Avi Bell is a professor of law at the University of San Diego and Bar Ilan University, and founding dean of the Israel Law and Liberty Forum’s annual program on law and democracy.

There’s a need for judicial reform, but the Supreme Court plays a crucial role in safeguarding democracy

US founding father James Madison: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” (Image: Wikimedia commons). 

James Madison famously warned that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Israelis, and their American friends, would do well to keep that warning in mind as they observe the trials and tribulations of the Middle East’s only democracy.

In the face of extraordinary existential threats, Israel’s improbable endurance as a free and thriving nation is all the more remarkable considering its shaky constitutional foundations. Our country has no constitution, no bill of rights, no federal distribution of power, no presidential veto, and only a single house of parliament, which is controlled by the executive branch by virtue of its parliamentary majority. A simple majority in the Knesset can—and often does—alter the foundations of our democratic regime.

What has prevented democratic erosion? Intangibles certainly play a role, among them responsible leadership, a vibrant civic culture and a divided polity. But from an institutional perspective, there has been only one check on the otherwise absolute power of any parliamentary coalition: Israel’s Supreme Court.

This may be about to change. Prime Minister Benjamin Netanyahu’s new government is very different from the previous five he has led. Lacking any partners on the center or left, Mr. Netanyahu built a coalition dependent on ultra-Orthodox, nationalist and far-right populist parties that all believe they have a mandate for radical change. Headlines around the world have focused on the changes these coalition members seek in policy regarding religion and the West Bank. While these are legitimate areas of concern, champions of democracy—on the right and on the left—should be more worried about the constitutional overhaul that is under way in the Jewish state.

Each of the sectors represented in the new government has ambitions that go far beyond the advancement of its narrow group interests. The most radical of these policies aren’t supported by the majority of Israelis and would likely face challenges in court. Which is why the coalition members have agreed to start by weakening the court’s independence and curtailing or eliminating its power to review policy and legislation.

Since the 1950s, Israel’s Supreme Court has on occasion struck down government decisions and regulations, and since the mid-1990s negated statutes that it found to contradict the country’s Basic Laws—a series of foundational laws passed by the Knesset and broadly recognized as chapters of a constitution in the making. This practice has met with criticism because unlike the U.S., Israel doesn’t have a formal constitution that serves as the agreed basis for judicial review.

The court has intervened sparingly to protect the rights of all types of Israelis, paving the way for women to become fighter pilots in the air force and preventing discrimination by ultra-Orthodox Ashkenazi high schools against Sephardic students.

The court has also overturned a handful of laws enacted by the parties now coming into power. Most significant, a decade after the Knesset passed a law exempting ultra-Orthodox yeshiva students from serving in the military, the court struck it down as violating the principle of equality. An unintended consequence of these rare interventions has been the emergence of a committed faction of ideologues determined to clip the court’s wings and place it under the thumb of politicians.

The heart of the initiative is a bland-sounding judicial reform called the “override clause.” As proposed by the Justice Minister Yariv Levin (a member of Mr. Netanyahu’s Likud Party), the reform would allow a 61-seat majority in the 120-seat Knesset—which almost any governing coalition has—to override a Supreme Court decision striking down legislation deemed to contradict Israel’s Basic Laws.

Until recently, Mr. Netanyahu has always deflected such radical changes to the system. Now, whether because his coalition partners demand it or because of his own legal troubles—he is currently standing trial on bribery and breach-of-trust charges—he seems to be singing a different tune.

There is still hope that Mr. Netanyahu will change course, announce a “constitutional truce” and choose to cement his legacy by completing the work left unfinished by Israel’s founding fathers. There is broad consensus within the country for redefining the rules of the game and strengthening the separation of powers.

Israel’s founding father, David Ben Gurion, coined a principle known as mamlakhtiyut, meanly roughly placing the national interest above the needs and interests of the individual. This is what Israel needs now, Plesner argues, to resolve the current constitutional impasse (Image: Wikimedia commons).

Mr. Netanyahu’s coalition, made up of parties that received 49.5% in the vote, holds a 64-seat majority in the Knesset. In keeping with the tradition that changes to a democratic regime should be made with the broadest possible public support, Mr. Netanyahu has the opportunity to defy expectations, reach across the aisle, and work with his political opponents on a new constitutional arrangement. Such a solution wouldn’t force one branch of government to surrender to another but rather create a new balance among them. This would include strengthened parliamentary oversight of the executive branch and limits to judicial review, while providing enhanced protections of the rights of all Israelis in the absence of a written constitution.

David Ben-Gurion, Israel’s founding leader, famously stood for the principle of mamlakhtiyut, an untranslatable term that connotes the placement of the national interest above the needs and interests of the individual or sector. Over the next few months, our democracy will be tested. As Israel emerges from the worst political crisis in its history, it needs principled leadership that exhibits what John F. Kennedy famously called “profiles in courage.” Its new leader can rise to the occasion by rejecting sectoral demands, defending the national interest and protecting our precious democracy.

Mr. Plesner is President of the Israel Democracy Institute. He served as a member of the Knesset, 2007-13.