JERUSALEM — Mired for years in a corruption investigation, Israeli Prime Minister Benjamin Netanyahu has long claimed that the courts are conspiring to destroy him. Now he is advancing an incendiary plan to hobble the country’s judicial system that he maintains would make it more representative of the views of the majority. But his initiative has sparked a national crisis that many have warned may end in bloodshed.
On Monday, police estimated 100,000 Israelis demonstrated against the judicial overhaul outside the Knesset in Jerusalem, chanting “disgrace!” and “Israel is not a dictatorship!” President Biden has called for compromise; economists have warned that investments in Israel, particularly its tech sector, are at risk; Israel’s president has warned of “societal collapse.”
Here’s what you need to know about the proposed changes to the Israeli judiciary, and why they have divided the country:
What’s in the bills?
On the table are several bills amending Israel’s “basic laws” — legally equivalent to constitutional amendments — which would grant Knesset lawmaker control over judicial appointments, eliminate judicial review of legislation and allow parliament to vote down Supreme Court decisions.
Effectively, these changes will mean “there is no legal boundary to government,” said Aeyal Gross, a professor of constitutional and international law at Tel Aviv University. “A government with no limits totally undermines any idea of democracy.”
In Israel’s parliamentary system, the Supreme Court has been seen as the sole check on lawmakers. Israel’s high court both reviews appeals from lower courts and hears petitions filed against the government and public bodies. It has struck down laws targeting Ukrainian refugees and African asylum seekers and has delayed the eviction of Palestinians in a sensitive Jerusalem neighborhood. In other cases, say rights groups, it has upheld key violations of Palestinian rights.
On Monday, the Knesset gave preliminary approval to two bills that would allow it to appoint judges and to nullify judicial review. One amendment would change the makeup of the nine-member Judges Selection Committee, which handles judicial appointments. The move would effectively give the government an automatic majority when voting on appointees.
On Tuesday, it is discussing, and perhaps voting on, an “override clause,” a rare mechanism that would allow a simple Knesset majority of 61 votes to override Supreme Court decisions, potentially removing legal protections for groups that are not liked by the ruling coalition. The only other country in the world with an override clause is Canada, which has a constitution. Israel has no constitution, just the “basic laws.”
“It’s basically taking the worst from each country, but without the other contexts and guarantees in that country,” said Gross, the law professor.
The three bills will be voted on three times before becoming law. The first vote is expected early next week. The second and third could, if both sides agree to negotiations, take place only after a several weeks.
Justice Minister Yariv Levin has also presented the text of several other bills, such as one reducing the independence and legislative oversight of legal advisers for ministers. The final details of other proposals circulating are not yet clear.
Why is Netanyahu doing this?
Netanyahu, Israel’s longest serving leader, has frequently been at odds with the judiciary.
Netanyahu returned to office late last year to head the country’s most far-right government in history. His coalition includes once-fringe religious nationalists, Jewish supremacists and settler activists who have pledged to support his efforts to upend the judiciary and drop the charges against him in his ongoing corruption trial.
Ending judicial oversight of legislation would be a major win for Netanyahu’s far-right coalition, whose members have vowed to prioritize Israel’s Jewish character over its democratic one and to annex the occupied West Bank — the land Palestinians envision as part of their future state.
It would also enable Netanyahu to legally protect allies in his coalition, including Aryeh Deri, the leader of the ultra-Orthodox Shas party. Netanyahu was compelled last month by the Supreme Court to fire Deri, who was serving as health and security minister, due partly to his “backlog of criminal convictions.”
In three separate cases, Netanyahu has been charged with abusing his official position to grant favors to wealthy business executives in exchange for gifts that include champagne, cigars, and favorable media coverage for his family. As the first Israeli prime minister facing indictment while in office, Netanyahu’s trial sparked a prolonged political crisis that has dragged the country through five rounds of elections in less than five years.
Earlier this month, Attorney General Gali Baharav-Miara sent a letter to Netanyahu ordering him to distance himself from the judicial overhaul due to the obvious conflict of interests. Netanyahu said he viewed Baharav-Miara’s directive as “unacceptable.”
Netanyahu has claimed that the judicial overhaul and his personal legal issues are separate. But Levin, a member of Netanyahu’s Likud party, told a Knesset plenary last month that it was “the three indictments” that “convinced” him it was necessary to “correct” the system.
Despite pleas from Israeli President Isaac Herzog to halt the process and meet with the opposition to reach a compromise, Levin is continuing move forward. If it goes through — and the government controls judicial appointments in every court across the country — then this could have a major effect on Netanyahu’s case: The prime minister is being tried in the Jerusalem District Court and would likely appeal to the Supreme Court if convicted.
Why is this a problem in Israel?
Liberal Israelis consider the country’s Supreme Court the last bastion of its democracy. But members of Netanyahu’s coalition claim that the Supreme Court is populated by leftist elites and has oppressed the will of a country that has been rapidly pivoting toward the religious and nationalist right
A system free of checks and balances, Supreme Court President Esther Hayut warned last month, would lead to an Israel that “bears the name of democracy in vain.”
“We can expect that after this reform is passed, Arabs will be discriminated against, there will be a separation between men and women, there will laws and maybe verdicts in the Supreme Court that will take away rights of LGBTQ community. Material democracy will be harmed,” said Amir Fuchs, a senior researcher at the Israel Democracy Institute, who will speak at the Knesset deliberations on Tuesday, ahead of the vote on the override clause.
Israel’s Supreme Court in 2021 upheld the controversial Nation State Law, which declared Israel a national homeland for Jewish people and effectively codified Palestinian citizens of Israel as second-class.
But even though “the judicial system is not favorable to the Arab public,” Palestinian Arab lawmaker Ahmed Tibi said Monday, he would fight the reforms “because at the end of the day the Supreme Court is the refuge of the minority.”
Netanyahu and his coalition partners claim that they have the mandate to enact the proposals. They cite their clear victory in the November elections, in which they clinched 64 of the 120 seats in the Knesset. But the lawmakers did not publicize their judicial plans before the vote. As a quirk of parliamentary math, the parties that make up the coalition represent only 50.1 percent of the total votes.
The Israeli opposition has so far rejected overtures issued Monday night to sit down for negotiations, without the requested preconditions to halt the process.
“Let’s talk without the whip of ongoing, aggressive and expedited legislation hanging overhead in the background,” Israeli journalist Ben Caspit wrote on Tuesday in the newspaper Maariv. “People aren’t prepared to accept that their democracy is being hijacked and to move on.”
