Is Benjamin Netanyahu Undermining Israeli Democracy?

Tens of thousands of protesters have poured into Jerusalem’s streets in recent days to protest a slate of judicial reforms proposed by the government of Israeli Prime Minister Benjamin Netanyahu.

The proposals would give the elected representatives more influence in selecting judges, effectively take away the judiciary’s ability to overrule legislation, and end use of the “reasonableness test” the country’s high court uses to judge the government’s decisions. Fundamentally the issue is whether the ultimate check on government power should rest with the legislature or the judiciary—and what that means for the health of Israel’s democracy.

What is Israel’s system of governance?

Israel has one house of parliament, the 120-member Knesset, where members are elected to four-year terms. A majority selects the prime minister, though the body can dissolve itself prematurely and call for new elections. (Last year, Israel held its fifth national contest in four years.) Netanyahu cobbled together a 64-seat coalition from several parties late last year. 

Israel has operated without a written constitution since its modern formation in 1948. Over time, legislators have passed more than a dozen “basic laws” that form a never-finished quasi-constitution. The laws outline the various institutions of Israeli society and can be amended by the Knesset.

What is the role of the Supreme Court?

Israel’s Supreme Court acts as the country’s highest court of appeals and its High Court of Justice, which hears direct petitions from citizens and residents against governmental rules and orders. The court can strike down administrative actions if it determines they run afoul of the Basic Laws, but its authority to do so has never been formally established through law.

Past iterations of the Supreme Court have differed on the court’s ability to review Knesset legislation. But in the 1990s, the court’s role expanded in what became known as the “Constitutional Revolution.” After the Knesset passed two Basic Laws pertaining to human rights, the court in a landmark ruling essentially claimed the authority to override Knesset laws that ran afoul of basic laws. Since 1992, the Supreme Court has overruled around 20 laws.

Currently, judges in Israel are appointed by the nine-member Judicial Selection Committee that includes three Supreme Court judges, two members of the Israel Bar Association, and four members of the ruling government—two Knesset members and two ministers. 

Judges must win a simple majority to be confirmed to lesser courts, and the selection of a Supreme Court judge requires seven votes.

The court has faced criticisms of judicial overreach and activism. It has, for example, prevented the Knesset from codifying an exemption for ultra-orthodox Jews from the country’s military draft. At times the body also has ruled that expanding settlements in parts of the West Bank was illegal. 

What are the proposed reforms?

Current judicial reform efforts have four basic components.

Override proof clause: A simple majority of the Knesset could override a Supreme Court decision. If the court nullifies a law, the Knesset could “relegislate” and pass it again.

Reasonableness Doctrine: The Supreme Court could no longer use the test of “reasonability” to overturn legislation, government appointments, or other administrative actions. 

Overhauling appointment process: The current proposals would replace the two Israel Bar Association representatives of the Judicial Selection Committee with two members chosen by the government’s justice minister, giving the ruling government majority control of the confirmation process.

Legal advisers: Currently, government ministers don’t appoint their own legal advisers, whose opinions on the legality of administrative actions can be cited by the Supreme Court. The new law would enable ministers to appoint their own legal advisers whose opinions would carry no legal weight.

What are reform proponents arguing?

Supporters of the reforms have been accused of undermining Israel’s democracy. They respond that similar policies to the proposed changes can be found in other democracies like the United Kingdom or United States, where senators confirm the president’s judicial picks.

They also argue that the moves would rein in an activist judiciary, which itself is an anti-democratic institution. 

“What recourse do the citizens have if the Court gets it wrong?” Moshe Koppel, founder and chairman of a Jerusalem-based think tank, the Kohelet Policy Forum, wrote in a Times of Israel op-ed. Pushing for judicial reform has been one of Kohelet’s priorities since its founding a decade ago.

Eugene Kontorovich, a Kohelet Policy Forum scholar, argued that prior to the court’s expansion of power in the mid-90s, Israel wasn’t an authoritarian regime, and he’s not worried judicial change will make it one now.

“It’s very hard to strike a precise balance in the balance of power. Let’s say that it’s swung too far back in the other direction,” he told The Dispatch. “Nobody’s denouncing the collapse of democracy with the pendulum too far in this direction—power in the hands of a small group of unelected officials.”

He added that power “is always safer in the hands of the Knesset, because the Knesset will ultimately stand for election, and its members turn over not infrequently.”

What do critics say?

The law’s opponents are skeptical, arguing that the reforms would deal a crippling blow to the judiciary’s independence and allow politicians to pack the court with favorable appointees.

“The separation of powers between the various branches of government is not strong compared to other democracies,” Alex Lederman, of the Israel Policy Forum, an American Jewish organization, said in an interview. He noted that the country doesn’t have states or provinces to concentrate power in, meaning the national “government has the majority to basically do what it wants, which means that the judicial system is an essential check on that.”

The current government, Lederman said, wants to “define the relationship between the legislative and executive on one hand and the judicial branch on the other so that the legislative branch basically always has the final say.”

Some critics say the reforms will hand Netanyahu—who faces a corruption trial—a get-out-of-jail -free card. Political opponents have speculated that these reforms could lead to others that would enable him to avoid conviction or penalties, though the ruling coalition denies it. 

What’s next?

The legislative process is unpredictable. The reforms have been split into bills and must first be approved by the relevant committees before they go to the reading process. To become law, the proposals have to pass three readings and votes. 

Observers say they expect some sort of reform will become law by the end of the Knesset’s session in April.

Meanwhile, Israeli President Isaac Herzog recently proposed a compromise that would change the selection process for judges—without giving an outright majority to any side.

“Of course there will be compromises, there are already compromises,” Simcha Rothman said according to the conservative Israeli newspaper Makor Rishon. Rothman is chair of the Knesset’s Constitution, Law, and Justice Committee, which is considering most of the reforms.

Israel Policy Forum’s Lederman is not optimistic: “I think it’s really shown Israel, and it’s really shown the world that Israel’s lack of a constitution is a severe shortcoming in its democracy.”