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The overhaul of justice proposed by Netanyahu’s bloc is set to be a historical shift in the Israeli political system.
The overhaul of justice proposed by Netanyahu’s bloc is set to be a historical shift in the Israeli political system. The prime minister, on trial for corruption, made these judicial changes the core of his government’s agenda.
On 4 January 2022, the newly-appointed minister of justice, Yariv Levin, announced a controversial and wide-ranging overhaul of judicial procedures. The reform, if enacted, would change the Israeli governmental system on which the country has relied since its foundation.
As a response, the Israeli Supreme Court of Justice immediately rejected the proposal. It also called on Israeli society to avoid reforms that would significantly change any democratic processes between institutions. Following the call, the opposition and a large chunk of society mobilised to stop the overhaul.
The Supreme Court of Justice is one of the most relevant players in Israeli democracy. It has been fundamental in maintaining a political balance between institutions. In particular, the court examines all appeals to state authorities and other public bodies performing their duties. Moreover, it determines the possible unconstitutionality of laws created by the government.
Netanyahu’s coalition is in the midst of a process that would increase the government’s power over Israel’s judiciary. The leader of the Israeli opposition, Benny Gantz, has already labelled it a “political coup.” The judicial overhaul would drastically limit the Supreme Court of Justice’s power in reviewing legislation and provide the government control over judicial mandates.
The override clause, on which the government bases its attempted overhaul of justice, will be able to repeal laws previously invalidated by the Supreme court with a simple majority of 61 of the Knesset’s 120 members. On the other hand, the Supreme Court will require the unanimous agreement of all judges to disqualify a law presented by the cabinet.
Former Israeli Judges have already slammed the override clause as a “far-right legislative blitz” that will “damage the country’s fundamental values.”
In one of her latest comments, Suzie Navot, professor of constitutional law and vice president of research at the Israel Democracy Institute, wrote that the primary issue after the latest elections is that any “majority in the Knesset can enact, amend and delete any Basic law … in a normal law-making procedure…. Which means that the politicians in Israel – and only in Israel – have the possibility to change the constitutional rules of the game at any time” together with the political nature of Israel.
As underlined by Yaniv Roznai, co-director of the Rubenstein Center for Constitutional Challenges at Reichman University, the override clause would give a “blank check to the government to proceed as they like.”
“If the executive will seize the judiciary and politicise the entire judicial process, the main consequence will be the removal of all the gatekeepers. Following the ‘override clause,’ any future government would seek legal advisors among their people. These officials will likely obliterate all checks and balances for the constitutionality of the proposed law,” said Roznai.
Despite the public outcry by the Supreme Court’s chief justice and the country’s attorney general against the plans to overhaul the judicial system, the mechanisms for legislative opposition are limited.
In his article ‘Is Israel becoming a Middle East Dictatorship under Netanyahu?’ Juan Cole wrote that a realistic outcome could be the exclusion of all judicial and impartial players from the review of the government’s legislative process, resembling other authoritarian countries in the region.
A Country Divided
The reform has been a central topic in Netanyahu’s latest electoral campaign and mobilised millions of Israeli voters to support him in making the change. The prime minister continued to guarantee that his intention to reform the judicial system thoroughly had wide support among the population. In his narrative, the opposition agreed that new steps were necessary to make fundamental corrections to the judicial system.
The Israeli prime minister continues to say that the attempted overhaul of justice would not put an end to democracy. However, many in the country see it as an existential risk, as it would jeopardise and change Israel’s democratic character.
As a result, Israel’s political crisis has split the country in two with no sight of a peaceful resolution.
Driven by Netanyahu’s provocative speeches, many Israeli voters believe the Supreme Court has acted against laws based on its political bias. Many within the right-wing political spectrum want to change the Supreme Court’s structure to provide an increased counterweight to the balance between elected officials and bureaucrats.
Conversely, the liberal part of society believes this steps further toward autocracy and will fail to protect minorities. It also understands that the rule of the Supreme Court and the separation of power are the only ways to maintain democracy.
Aryeh Deri, the Shas leader and previous minister of interior, has become central in the dispute between the Supreme Court and the government.
The Supreme Court’s decision was mainly driven by Deri’s pledge to permanently quit political life in exchange for leniency in his 2022 trial for tax offences. The ex-minister – who previously served as minister of interior, minister of the development of the Negev and Galilee and minister of economy – however, insists he never made any such commitment.
The Israeli prime minister continues to sustain his ally and plans to return Deri to the government. During a meeting, the prime minister labelled the court’s decision as an “injustice” that “violated the principle of democracy.”
Other coalition members unconditionally supported the Shas leader, vowing to fight back against the ruling in a move bound only to heighten the general animosity.
Netanyahu’s Gamble on Justice
Netanyahu’s personal crusade against the Supreme Court is intimately related to his ongoing trial, which began in 2016, on the accusation of receiving gifts from businessmen while in office as prime minister. The Israeli prime minister, 73, has been charged with bribery, fraud and breach of trust in several cases against him, commonly known as cases 1000, 1270, 2000, 3000 and 4000.
In numerous countries, national leaders are forced to resign if accused of criminal charges while performing their duty. In Israel, however, the prime minister can remain in office until convicted of a crime.
Although Netanyahu has always denied wrongdoing and has publicly stated he will not use his position to further his judicial case, analysts suggest his allies could plan to prepare an ad-hoc law to give the prime minister immunity.
The “French law,” so dubbed because of the French president’s immunity from prosecution, could allow the prime minister to postpone the trial until the end of his time in office.
Far-right partner in the coalition Itamar Ben Gvir, in October 2022, publicly asserted he will require new legislation to allow for the cancellation of Netanyahu’s trial.
Moreover, partners in Netanyahu’s political bloc promised to withdraw charges such as fraud and breach of trust from the penal code. According to the lawmakers “the crime is poorly defined giving the court too much discretion when deciding on a conviction.”
Concerned International Allies
The unease about the reform of justice in Israel has also reached Washington and other allies. Within a few weeks, Jake Sullivan, the US national security advisor and Anthony Blinken, the US secretary of state, flew to Jerusalem to express Washington’s concerns.
As reported by an 86-page analysis by the Institute for National Security Studies in Tel Aviv, the plans to overhaul the judiciary could undermine democracy and put Israel on a collision course with the United States, endangering crucial strategic ties.
Israel’s new hardline government, led by Prime Minister Benjamin Netanyahu, “is perceived by the public as driven by a clear right-wing agenda and perceived as a threat to Israel’s ethos as a Jewish and democratic state,” the report read.
A deep polarisation has emerged as the result of four years of “political instability, incitement and mutual de-legitimisation,” the authors noted.
Warning of the real possibility of internal violence, the report explains, “All factors endanger the ability of Israel as a state to preserve the foundations of democracy as well as the balances between state and religion and the protection of minorities.”
Despite Netanyahu’s comments on the possibility of negotiating the law and mitigating some highly divisive topics, it seems very unlikely that the government will step back from its plan to reform the justice system in the country.