Why Israel is bitterly split over a plan to overhaul the judiciary

The plan to overhaul Israel’s judicial system has led to massive protests by demonstrators who say it would undermine the country's democracy. PHOTO: AFP

JERUSALEM - Israeli Prime Minister Benjamin Netanyahu’s government, a coalition of right-wing and religious parties that came to power last December, has made overhauling the country’s judicial system a top priority.

Its plan has sparked massive protests, mostly by secular Israelis in the centre and on the left who argue that the proposals would undermine the country’s democracy. The fight over the issue provoked Israeli President Isaac Herzog to warn that a civil war is “within touching distance”.

1. Why does the government want to change the judicial system?

The government complains that the Supreme Court has become overly interventionist, such that judges are usurping powers that rightfully belong to elected officials.

In recent decades, as the right triumphed politically, the court – a last bastion of progressivism – has waded increasingly into political matters by expanding the kinds of cases it takes on.

It lowered so-called threshold requirements that had previously filtered out cases – for example, those that were not tangible disputes between two parties.

And, for the first time in 1995, it declared that it had the power to strike down legislation it found incompatible with rights established by Israel’s Basic Laws, which together form the closest thing the country has to a Constitution.

In reviewing actions by the executive branch, critics say the court has applied the test of reasonableness – would a reasonable public authority make such a decision, in a way that goes beyond that typically used in other common law countries. 

2. What sort of rulings does the government object to?

For the far-right members of Netanyahu’s coalition, court decisions supporting the rights of Palestinians are particularly unpalatable. For example, in 2020, the court struck down a law that authorised the government to expropriate private land owned by Palestinians if Jewish settlers had built on it.

The two parties in the coalition that represent ultra-orthodox Jews object to the court’s invalidation of laws exempting men from their community from mandatory military service.

Further annoying one of the parties, Shas, the court in January applied the reasonableness standard to rule that the party’s leader, Mr Aryeh Deri, could not serve in Netanyahu’s Cabinet, given that he had promised not to enter public service as part of a plea deal in his conviction for tax offences.

3. What is the government’s plan?

The overhaul is made up of a number of separate initiatives requiring the approval of Israel’s Parliament, the Knesset. They include:

- Preventing legal authorities from declaring a prime minister unfit to rule and removing him from office. A law approved on March 23 stipulates that only the Knesset and the Cabinet can force the country’s leader out.

- Limiting judicial review of legislation. Under a proposed change, the Supreme Court could only invalidate legislation if it plainly violates a provision of the Basic Laws. Currently, the court interprets the legal guarantee of the dignity of the person as also protecting the right to equality, freedom of speech and freedom of religion, but those rights are not explicitly provided for. A decision to quash legislation would require a unanimous vote of the court under one version of the plan, or 80 per cent of the 15 justices in another version. Currently, such decisions require a simple majority of a panel of judges.

- Allowing the Knesset to override judicial reviews of legislation. Currently, the court’s word is final. Under the government’s plan, the Knesset could vote, by a simple majority, to pre-empt any judicial review of legislation or to annul it.

- Changing the way judges are chosen. Currently, Supreme Court justices are selected by a committee made up of two ministers, two lawmakers (one of whom is traditionally from the opposition), two members of the Bar association and three justices. Under the government’s plan, lawmakers from the government coalition would hold a majority on the committee. The court’s presidency would be opened up to candidates who had not served on the court and who are not judges.

- Abolishing the reasonableness test as a standard for reviewing executive decisions.

4. What do critics say about the plan? 

Even many opponents of the overhaul acknowledge that there is a case to be made for rethinking the Supreme Court’s power, notably the dominant role judges play in selecting their successors and the open-ended rules about which cases it takes.

At the same time, critics worry that the government’s plan will remove the only significant check on the power of the executive branch.

In Israel’s political system, to form a government requires having a majority in the Knesset. Because Knesset members are elected not as individuals but on party slates, they owe their allegiance to their parties. Thus, a ruling coalition can pass any law it wants, unless it is checked by the court. 

5. What are the specific worries?

Given the nature of the current government – which includes ministers who have openly dismissed equal rights for Arabs, women and LGBTQ (lesbian, gay, bisexual, transgender and queer) people – critics fear that it will undermine human rights and give greater privileges to the ultra-orthodox community at the expense of other Israelis.

Critics say the law governing who can declare a prime minister unfit is meant to protect Netanyahu, who is on trial on charges of corruption, all of which he denies. Israeli Attorney-General Gali Baharav-Miara has warned Netanyahu that any involvement by him in the effort to change the legal system is a conflict of interest. BLOOMBERG

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