July 25, 2023

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IntelBrief: Controversial Israeli Law Curbs Judiciary Power Amid Growing Domestic Unrest

AP Photo/Ariel Schalit

Just yesterday, the Knesset, Israel’s Parliament, approved a highly controversial new law aimed at curbing the power of its judiciary. The law is the first part of Israeli Prime Minister Binyamin Netanyahu's proposed judicial overhaul, which resumed discussions after a four-month hiatus due to ongoing protests. The new law prohibits Israel's Supreme Court from using the legal standard of "reasonableness" to override the policies or laws of the national government. It also overturns the doctrine that grants Israel’s Supreme Court the authority to oversee cabinet and ministerial appointments. The second part of the proposed judicial overhaul would grant the Knesset final authority in appointing judges and the power to overturn Supreme Court rulings with a simple majority vote. Supporters of the ruling coalition argue that this law will enhance democracy by granting elected officials more influence over the country's laws than unelected judges. On the other hand, the opposition strongly contends that these laws pose a grave threat to Israel's democracy and represent the consolidation of power by Netanyahu and his allies. Last weekend, Western leaders, including U.S. President Joseph Biden, urged Netanyahu and his coalition to slow down these divisive processes instead of rushing to ram through the proposed changes. Despite these pleas, the government proceeded with the passage of the law. In response, reportedly thousands of protesters blockaded streets and, in return, were met by police using water cannons to disperse demonstrating crowds.

In recent years, Netanyahu has been associated with increasingly right-wing policies and has formed a parliamentary coalition that includes some of the most extreme right-wing voices in Israel. Israel’s ultranationalist Minster of National Security Itamar Ben-Gvir – who along with his party, Jewish Power, became a major player in Netanyahu’s bid to regain power – was barred as a teenager from serving in the Israeli Army because he was considered too extremist. This hardline shift in the Likud, Netanyahu's party, has raised concerns across the political spectrum and among Israel’s foreign allies, including the United States. In the past, Netanyahu had managed to curb attempts by more right-wing counterparts to pursue judicial overhaul policies. However, after being indicted on charges of bribery and corruption, his position changed. Netanyahu has faced significant criticism for pandering to the extremist elements within his coalition, defending himself by claiming the ability to restrain more hardline, illiberal voices within his coalition as needed. Nonetheless, recent events, such as the passage of the controversial new law, indicate that he has made increasing concessions to right-wing demands. Reportedly, the Israeli prime minister faced mounting pressure from coalition members, who threatened to resign if he softened the legal language of the recently passed bill. Furthermore, key cabinet positions have been filled by representatives from these right-wing parties, raising concerns about their influence on crucial policy decisions.

The surge in right-wing power in Israel has sparked fear among citizens about the potential erosion of democracy. This fear had caused wide-scale protests in the past in response to judicial reforms; the current protests – which have reportedly mobilized tens of thousands across the country – could intensify substantially over the coming days. This past weekend, prior to the passage of the law, many professional sectors of Israeli society protested the legislation. Most prominently, elite Israeli Defense Force (IDF) reserve pilots and members of the Air Force have refused to return to service. Israel’s largest trade union also threatened a strike, and the Israel Medical Association has indicated that it would also strike if the legislation were passed. Israel’s technology sector, whose opposition proved to be instrumental in the March protests and whose contribution makes up a large portion of Israel’s economy, has also protested to no avail. At the same time, some opposition leaders are seeking legal avenues to challenge the new law. Centrist opposition leader Yair Lapid announced that his party intends to file a petition with the Supreme Court to seek a ruling on the legality of the new law; the Israeli Bar Association has also announced it plans to petition the Supreme Court against the law. It is, of course, unclear if these attempts would be successful, given the new restrictions on the court’s power.

The mass protests will likely continue throughout the week, causing political unrest and upheaval. Many experts believe that the passage of this law, and future judicial reforms, will plunge the country into a constitutional and political crisis. At the crux of this issue is Israel’s lack of a constitution, which was unable to pass at the time of the country’s inception. Instead, the Knesset relies on its Basic Laws which govern elections, and address the role of the judiciary, the military, and other governmental procedures. At some unidentified point in the future, the 13 Basic Laws are expected to form together to build a constitution. However, in the absence of this constitution there is no clear answer as to whether the Basic Laws can act as de-facto constitutional laws, i.e., if the Basic Laws are legally superior to other laws. Without a constitution, or legal clarity surrounding the power of the Basic Laws, any legislation passed must be, according to legal experts, assessed by their “reasonableness.” Without the ability to measure reasonableness and no constitution to base its decisions on, the judiciary remains severely limited. The notion of drafting a constitution to address these issues might appear straightforward, but it poses challenges due to the deep divisions within Israeli society, including between secular and religious Israelis. While a large majority of Israelis support the idea of a constitution, there are divisions surrounding ideas of civic equality. According to research conducted by the Viterbi Family Center for Public Opinion and Policy Research, nearly half (approximately 49 percent) of Jewish citizens believe that they should have more rights in Israel than non-Jewish people, making the process of drafting a democratic constitution complex and contentious.

The Knesset will go on a recess starting July 30th. Upon its return, lawmakers may consider implementing the rest of the proposed judicial reform, including greater political oversight in the process of judicial appointments. Despite Netanyahu's previous assurance that he would not actively pursue this specific measure, the more right-wing members of his coalition have successfully prevailed on him to adopt more extreme policies in the past, resulting in lingering uncertainty surrounding the future of Israel’s democracy and its judiciary. This is among the most contentious moments in Israeli politics since the country was established in 1948, unearthing deep ideological and cultural fissures in Israeli society. Isaac Herzog, Israel’s president, ominously warned of the risks of a broader civil war in the country. Moreover, as the new law was just the opening salvo of Netanyahu’s proposed judicial overhaul, a cessation of tensions any time soon is unlikely. In the words of ultranationalist minister Ben-Gvir to reporters after the successful vote, “this is just the beginning.”