Netanyahu Fails to Push through Judicial Overhaul: What’s Next for Israel’s Political Crisis?

Since January 2023, Israel has been rocked by unprecedented protests and deep divisions not just among the public and political parties but also within the country’s security and military establishment. At the centre of this showdown is Prime Minister Benjamin Netanyahu’s drive to push through sweeping reforms of the judiciary and Israel’s legal system. Netanyahu’s objectives are twofold: firstly, to grant himself immunity from prosecution over alleged corruption, and secondly to push through laws that match the values of the fascist, far-right parties that form the bedrock of the coalition that returned him to power following elections in November 2022. Those polls gave the hard right 64 out of 120 seats in the Knesset, Israel’s parliament. Out of them, 38 are held by members of the religious Zionist camp and other extreme religious currents, and 14 live in illegal settlements in the Israeli-occupied West Bank.

A State Without a Constitution

As soon as it took power, Netanyahu’s sixth government set out to overhaul the judiciary and remove all checks and balances from the Israeli legal system so the government would have a free hand to govern according to its own vision, especially as regards the Jewish nature of the state, its identity and system of government. Israel doesn’t have a constitution. Instead, it has “Basic Laws” governing the executive, the legislature and the judiciary, with additional laws laying out so-called constitutional principles. But these laws have proven relatively easy to change, adjust or even revoke, through a simple 61-vote majority in the Knesset.

The Levin Plan to Overhaul the Judiciary

The first phase of the plan lays out major reforms to the makeup of the judiciary and the powers of its respective components. Most importantly:

It would change the makeup of the committee that selects and appoints judges. Currently the body comprises nine members; three Supreme Court judges, two ministers including the Justice Minister, two Knesset members (one from the government and one from the opposition), and two lawyers elected by the Israeli Bar Association. In 2008, following repeated protests by the far right over the committee’s decisions, the Knesset passed a law proposed by then-Justice Minister Gideon Sa'ar, meaning the committee had to pass decisions by seven votes to nine, rather than a simple majority. On 28 March 2023, the Knesset passed the first reading of a law that would give the government a clear majority in the committee. If the bill passes, it would expand the body to 11 members: three ministers including the Justice Minister, who would chair it, three members of the Knesset (MKs) from the governing coalition and two from the opposition, the Chief Justice, and two other Supreme Court Judges elected by their peers. Just six members of the committee would need to be present to reach quorum, and decisions could be passed with a simple majority of those voting. The committee would appoint two new Supreme Court judges by a simple majority as each new Knesset takes office, essentially meaning that they would be appointed by the government. The third judge would be appointed by the committee through a simple majority, on the condition that those voting include a member of the opposition. The committee would appoint the fourth judge based on a majority vote, providing that those voting include an opposition MK and a judge. The committee would appoint the Chief and Deputy Chief Justices on the basis of a majority rather than on the basis of seniority, as is currently the case. The committee would have full powers to appoint which candidate it sees fit to head the Supreme Court, regardless of the candidate’s length of service. Such an overhaul would fully subordinate the judiciary’s top body, the Supreme Court and judges in general to the will of the executive.

The position of Chief Justice is an extremely important one with far-reaching powers, including designating judges to specific cases in the top court in the land. The Chief Justice also has a mandate to order retrials. Therefore, the proposed changes would directly affect Netanyahu’s ongoing trials for alleged corruption and fraud. If the law passes, the government will have an automatic majority in the committee charged with selecting two new judges in October 2023 to replace to current judges as they reach retirement age, including the current Chief Justice Esther Hayut. In effect, this means that the government will appoint two judges without the opposition or the judiciary having a say. The judges who are appointed are likely to be from the extreme right, which strengthening that trend’s influence in the Supreme Court, whose composition has already been gradually shifting to the right over the past decade and currently includes two judges who live in settlements in the occupied West Bank.

Netanyahu’s trials are likely to last years. If he is found guilty, he will be able to lodge an appeal with the Supreme Court, whose chief to be appointed by the committee in October 2023 will choose the judges to examine that appeal.

An end to Supreme Court oversight of changes to Israel’s Basic Laws, meaning a governing coalition could pass new Basic Laws without the court being able to block them, even if those laws violated basic human rights.
Limits on the court’s oversight of normal laws passed in the Knesset. If the Levin bill passes, the Supreme Court will only be able to strike down such laws with an 80 percent majority of its members.
A law allowing the Knesset to resurrect laws struck down by the Supreme Court, with the exception of those unanimously rejected by all of its judges.
An end to the “reasonableness doctrine” in reviews of executive branch decisions. For decades, the court had used the doctrine to knock down decisions by various branches of government on the grounds that they undermined certain rights. Revoking the use of this argument would give the government more leeway to violate human rights and allow it to take arbitrary decisions without any oversight or checks on executive power.
An end to the powers of legal advisors at government ministries, whose advice would become non-binding. The bill also gives ministers powers to appoint legal advisors to their respective ministries, allowing them to fill these posts with loyalists whose advice could be used to justify ministry decisions rather than preventing them from taking illegal decisions.

Reactions to the Levin Plan

The resulting protests were enormous. As soon as the bill was brought before the Knesset for discussion, vast demonstrations were held in Tel Aviv and other Israeli cities, which became a weekly event. They brought together large segments of Israeli society, including opposition political parties, civil society groups working on human rights, anti-corruption and the rule of law, business and tech leaders, bank directors, lawyers, former judges, university presidents, senior military officers, former military and security chiefs, and elite units of the Israeli army, including pilots and operators of drones and cyber intelligence units.

The protests were notable for the following reasons:

A growing social, political and ethnic polarization in Israeli society, especially between mostly middle and upper-class secularists on the one hand and religious Zionists, Haredim (the ultra-orthodox) and settlers on the other, with Sephardic Jews disproportionately represented in the second camp.
The protest movement has proven persistent and broad-based, including large sections of Israeli society.
While the protest movement claims to be defending democracy, in reality it is defending the last bastion of liberalism in the country (the judiciary), the Western liberal way of life and the status quo. It has paid zero attention to the lack of liberal practices in the occupied Palestinian territories and the fact that only Jews enjoy the full rights of citizens in a state with 55 laws that explicitly discriminate against its Arab citizens.
The military and security apparatus have played a major role in opposing the government’s plans. Several former leaders of the military and security establishments have taken part in the protests, especially in recent weeks. They include former chiefs of staff, former heads of military intelligence, Mossad and the Shin Bet domestic security agency, as well as the former head of the Israel Atomic Energy Commission and generals in the reserve forces. Furthermore, hundreds of reserve Air Force pilots announced that they would stop volunteering for service and would boycott their training until the government changed course, saying they “did not want to serve in a non-democratic country.” This was a major blow to the capacity of the Air Force, as 60 percent of its pilots are reservists. Many drone pilots took the same position, along with experts and reservists in unit 8200, the cyber-security section of military intelligence. The protest movement also implicated other reservists such as in the armoured corps and even parts of the regular army[3]. This development shook Netanyahu’s camp, prompting a minister and three members of the prime minister’s Likud party to publicly call for the legislation to be shelved so a compromise could be found.

Netanyahu Sacks Defence Minister

Despite three months of mass protests, Netanyahu’s government has pressed forward with efforts to ram through its judicial overhaul. It has faced opposition from Israeli President Isaac Herzog, who urged it to suspend legislative activity for a set period to allow government and the opposition to hash out a new bill, and from the United States and European governments, which have pressed Netanyahu to pause and find an agreement with the opposition over judicial reforms.

Galant’s sacking triggered even bigger demonstrations in Israeli cities, demanding a halt to Knesset activities, and the government feared they could spread further.

But the factor that finally forced Netanyahu to change course came on 27 March. The chairman of the Histadrut, Israel’s top trade union, addressed business chiefs and the heads of banks and major tech companies, announcing a general strike until the bill was withdrawn. Netanyahu responded by announcing that he would delay the next Knesset session, set to begin in around a month. Likud members backed the suspension. So did far-right religious parties, which were nervous of a showdown with the Israeli elite. Those parties, whose children are exempt from army service, realized that their position is tenuous, as those privileges were won through blackmail within fragile governing coalitions over the years, rather than through direct showdowns with the rest of the Israeli public.

But Netanyahu’s concession in the face of the protest movement was a bitter disappointment to his coalition allies, especially the extreme right Jewish Power party of National Security Minister Itamar Ben-Gvir and the Religious Zionist Party of Finance Minister Bezalel Smotrich. Despite President Herzog mediating talks at his house to resolve the crisis, the rifts between all sides remain deep.

Conclusion

Netanyahu’s main goal at this point is keeping his governing coalition alive, and he is unlikely to embark on anything that would cause it to fragment, unless opposition leader Benny Gantz were to agree to enter a new coalition or support Netanyahu from the outside. But the premier cannot afford to back down on all his government’s proposed legislation without reaching a deal giving him at least some gains. Reaching a compromise will not come easily, and Netanyahu may be forced to relaunch the legislative process or reward extremist religious Zionist parties with additional privileges. Yet if he decides to push forwards with passing laws, he will risk deepening divisions in Israeli society and the state, as well as alienating many Jews in the US, at a time of heightened tensions with the Biden administration. On top of that, the situation in the occupied territories at boiling point. This means Israel is facing one of the greatest crises in its history. At the heart of it all is a single issue: Netanyahu’s position at the head of the most extremist government the State of Israel has ever had.

https://www.haaretz.co.il/news/politi/2023-01-22/ty-article/.premium/00000185-d85d-da66-a1bf-f9df6dda0000