The story so far:
On July 24, Israel’s governing coalition passed a critical part of its judicial overhaul plan in the Knesset that would curtail the Supreme Court’s oversight powers of government decisions. The Bill was passed with 64 votes against zero in the 120-member Knesset with all Opposition members staging a walkout and thousands protesting outside Parliament. Israel has seen months of protests against the right-religious government’s plans to overhaul the judiciary. Prime Minister Benjamin Netanyahu agreed in March to delay the voting of the Bills amid mass protests and then held several rounds of talks with the Opposition. But as the talks collapsed, the government went ahead with the voting.
What was the Bill passed in the Knesset?
The Knesset legislation abolishes the “reasonable doctrine”, which the top court has often employed to assess key government decisions and ministerial appointments. Reasonableness is a legal standard used in several countries such as Australia, Canada and the U.K. by the top courts to assess the government’s decisions. In Israel, which does not have a written Constitution, courts cannot measure government decisions constitutionally but the reasonability doctrine has worked as a critical judicial check on executive decisions. The court could determine whether a government decision or a ministerial appointment is sensible and fair and nullify it if needed. For example, Mr. Netanyahu had to drop Aryeh Deri, leader of the ultra-Orthodox Shas, as a Minister from his Cabinet earlier this year after the Supreme Court termed his appointment “highly unreasonable” due to previous convictions for bribery, fraud and various tax offences. Supporters of the government say the reasonability standard is too abstract and allows judicial overreach. Hence, they wanted to strike it down. Now that the doctrine has been scrapped, some local reports say Mr. Netanyahu might re-induct Mr. Deri into the Cabinet and take other controversial decisions.
What are the other proposals in the overhaul plan?
The original overhaul plan has different parts which together would strengthen the hands of the government over the courts. One of them was the abolition of the reasonability doctrine. Mr. Netanyahu’s government also proposed to curtail judicial review over legislation and then empower Parliament to override court decisions with an absolute majority of 61 votes (out of 120). The government also seeks to take greater control of judicial appointments. Under the current system, judges are chosen by a nine-member panel — three Supreme Court judges (including the court president), two members of the Israeli Bar Association, two members from Parliament and two from the government (Ministers). According to the proposed reforms, the members of the Bar Association would be replaced by two “public representatives” picked by the government, which means the government will have a majority of votes in the committee and decide on who should be the judges.
Editorial | Dangerous overhaul: On Israel’s judicial overhaul plan
Another proposal seeks to do away with the legal obligation for Ministers to follow the advice given by their legal advisers (which in turn are guided by the Attorney-General). After delaying the overhaul plan, Mr. Netanyahu entered into talks with the Opposition. In recent weeks, he had promised that he would not go ahead with the ‘override’ proposal. But after the Opposition quit talks with the government last month, Mr. Netanyahu went ahead with the reasonability doctrine Bill. The far-right parties in the coalition want other Bills also to be pushed through the Knesset.
Who is behind the overhaul?
Israel’s current government, composed of Likud (right-wing), United Torah Judaism and Shas (ultra-Orthodox) and Religious Zionist and Jewish Power (extreme right), is the most right-wing government in the country’s history. Over the years, Israel’s polity (and its Parliament) has shifted rightward, while the judiciary did not. The Right has criticised the judiciary for blocking its legislative and governmental pushes aimed at transforming Israeli society and expanding settlements in the Palestinian territories. Overhauling the judiciary (in other words, bringing the courts within the ambit of Parliament) has long been a right-wing agenda. Far-right leaders such as Itamar Ben-Gvir and Bezalel Smotrich have been pushing for the overhaul and Mr. Netanyahu, who himself is facing charges of bribery, fraud and breach of trust, has thrown his weight behind the plan.
The faces of the overhaul have been Mr. Netanyahu’s Likud party colleague Yariv Levin, Minister of Justice, and Simcha Rotman of Religious Zionism, who is the chair of the Knesset’s Constitution, Law, and Justice Committee. The right-wing politicians were aided by Kohelet Policy Forum, a think tank backed by American and Israeli billionaires. For years, Kohelet, run by Moshe Koppel, who grew up in New York and moved to Israel in 1980, and Arthur Dantchik, another New Yorker who donated millions to the organisation, has worked on policy reforms in Israel. In 2019, Mr. Koppel claimed in an interview that “we are the brains behind Israel’s rightwing”. The organisation wants to “secure Israel’s future as the nation-state of the Jewish people, to strengthen representative democracy, and to broaden individual liberty and free-market principles in Israel.” Since January, Kohelet emerged as one of the principal architects of the judicial reforms”.
Why did it trigger protests?
Israel’s Opposition and civil society accuse the government of trying to undermine the country’s democracy from within. Though the trigger of the protests was the judicial plans, there are bigger questions at stake such as the country’s identity and tensions between liberal and Orthodox Jews. In a country which lacks a written Constitution and a powerful presidency, the only institutional check on the government is the judicial system. Critics fear that if that system is torn down, it would leave Israel’s government, controlled by rightwing and religious parties, very powerful, turning the country into a de facto authoritarian theocracy. Though the protests started from the liberal sections of society, it soon spread to different groups, including military reservists who are the “backbone” of the country’s military. The secular and liberal Jews, who sign up for their compulsory military training, feel that the ultra-Orthodox Jews, who refuse to serve in the military, will try to undermine the courts and hand more powers to religious parties and sections. But despite mounting pressure from both within and outside the country, Mr. Netanyahu’s coalition stood together this time. Mr. Netanyahu wants the smaller religious and far-right parties to stay in power. And the Orthodox and extreme right parties want Mr. Netanyahu to push their agenda. They are working together to transform Israel.
What can happen next?
Civil society groups have filed petitions in the Supreme Court asking it to strike down the legislation on the reasonability clause. The country’s top court has said that it would review the challenges, and asked the defendants to submit a response at least 10 days before the preliminary hearing. The Supreme Court has the power to review Knesset laws, but here the contradiction is that the law is on the Supreme Court’s powers. So the judges would be reviewing a law passed in Parliament that curtails their own powers. This sets the country on the path of a constitutional showdown. While the legal challenges would take time, it’s to be seen what Israel’s government would be doing with its newly acquired powers. The far-right wants to give military service exemption to religious Jews and expand settlements in the West Bank. They also want to introduce other parts of the judicial overhaul plan in the Knesset, irrespective of the protests and resistance from the Opposition.
