Prime Minister Benjamin Netanyahu wants the public to see his efforts to overhaul the Israeli judiciary as a “reform.” But people have seen it for what it is: a struggle over the very future of democracy itself.
By Natan Sachs
The constitutional earthquake that began shaking Israel in January is once again rocking the country. Prime Minister Benjamin Netanyahu’s announcement at the beginning of the year that his coalition would pursue an overhaul of Israel’s judiciary set off massive street protests and drew scathing criticism from civil society. By the end of March, Netanyahu appeared to step back from a sweeping judicial revolution that would have all but abolished the court as a possible check on the excesses of the executive and legislature. In early July, however, the ruling coalition resumed legislation on one element of the plan set forward by Justice Minister Yariv Levin, signaling that the pause has ended and the battle over the future of Israeli democracy has resumed—in both its parliament and its streets.
The Israeli ruling coalition’s plans to “reform” the judiciary are dramatic. If passed in full, the proposed measures would make judicial review of executive- and legislative-branch decisions almost meaningless. The initial version of the initiative required unanimous or near-unanimous court decisions to strike down legislation; politicized the judicial-appointment process and the role of legal advisors to the government; and even permitted Israel’s parliament, the Knesset, to override a court decision to strike down legislation with a mere majority of its members. Faced with massive criticism, however, the coalition pared down the proposals somewhat—notably, removing the override. But the proposal was so dramatic that even a fraction of it would grant the executive powers that no democratic executive should possess.
Supporters of the reform claim that it would merely bring more balance to a system with an overly powerful Supreme Court. After all, they frequently argue, U.S. Supreme Court justices are also political appointees. The proposed reform, proponents contend, would simply grant elected officials the power to appoint justices rather than allowing sitting justices to continue having a supposed veto on who sits on the bench. Today, justices hold three seats on a nine-seat committee that appoints judges. The remaining seats are held by four politicians, including the minister of justice as chair, and two representatives of the bar. Granting the government’s ruling coalition outright control of the committee is a central element of the judicial reform.
The proposal has been controversial from the start. It sparked widespread protests beginning in January that were remarkable not only for their size (hundreds of thousands in the streets) but also for spanning broad segments of society—including academics, businesspeople, civil society, military reservists, and even some erstwhile supporters of Netanyahu. The demonstrations have continued every Saturday since and have now picked up force again with the coalition’s renewed push to pass the reform. Some foreign dignitaries such as French president Emmanuel Macron and members of the Biden administration, including the U.S. president himself, have also been critical of the initiative.
Soon after Netanyahu pressed pause, negotiations to find a compromise between the opposition and the coalition began under the auspices of the president, Isaac Herzog, whose post is ostensibly above politics. The negotiations were hobbled from the start, however, by the complete lack of trust between the prime minister and his opponents. In a vacuum, negotiators might well have found common ground, but in the current environment it was not the negotiations themselves that mattered, but rather the balance of power between the two sides: On one is civil society and the protest movement, whose remarkable size and perseverance have proven it to be more than a vocal minority. Polls suggest that if an election were held today Netanyahu would lose to the opposition, likely led by former defense minister Benny Gantz (elections are not due for more than three years). On the other is the Netanyahu coalition, which commands a modest but clear majority of the current Knesset with 64 of 120 seats. Current Israeli law allows such a majority to swiftly change any legislation—including Basic Laws, the Israeli equivalent, such as it is, of articles of a constitution—save for a review by the Supreme Court.
The comparison to the United States is informative. Proponents of the judicial overhaul cite the elements of the U.S. system that grant power to elected officials over the judiciary. In counterdemonstrations, Netanyahu supporters have called themselves “second-class citizens,” claiming that, although they are the majority (or at least were in the most recent elections), they cannot enact their preferred policies given the power of entrenched institutions, especially the judiciary. The populist element of Netanyahu’s electoral appeal contributes to this, painting the antireform demonstrators as well as political opponents as elites who are clinging to power despite demographic shifts that have rendered them a minority, even if a sizeable one.
In reality, majority rule in the United States is severely limited by the disproportionate representation in the Senate and the Electoral College of the country’s rural minority. Indeed, there is valid criticism of minority overrepresentation in the United States, which is baked into the U.S. constitution. More importantly, the United States and most established democracies have put in place a series of institutional barriers meant to protect minority and individual rights against arbitrary majority preferences. A majority eager to abuse minority rights must overcome the varying interests of two legislative chambers, a presidential veto, federal courts, and ultimately the Supreme Court, all within the framework of a written constitution with a longstanding Bill of Rights.
In Israel, in contrast, there is only one check on a parliamentary majority’s decision, even if it were to violate minority rights: the Israeli Supreme Court in its role as the High Court of Justice. Israel has unicameral parliamentary system, in which the cabinet serves, in a sense, as an executive committee of the legislature and the executive commands, by design, a majority in the chamber. Thus there is little separation of powers between these two branches of government. The head of the executive, the prime minister, is by far the most powerful member of the legislature, even if constrained by the daily wrangling within his or her coalition. If the prime minister and his faction wanted to pass legislation that violated basic civil liberties, there would be no second chamber or veto or Bill of Rights to stop them, only the Israeli Supreme Court in its role as the High Court of Justice.
The ruling coalition has now turned its attention to addressing administrative review—in particular, the right of the court to deem decisions of the executive as grossly “unreasonable,” meaning that specific decisionmaking processes either were undue or dramatically departed from their intended legal purpose. The masses on Israel’s streets have seen this step for what it is: a first step in the transformation of the country’s democratic makeup.
Reform vs. Revolution
Israel’s institutional composition actually does need reforming, but not the revolution proposed by Netanyahu’s coalition. The first Knesset, elected in 1949, was in fact elected as a constituent assembly. But after failing to put forward a constitution, the assembly transformed itself into the Knesset. Rather than articles of a constitution, Israel has Basic Laws, which have been legislated over decades to form something akin to a constitution. Those Basic Laws, however, can be changed at the whim of a majority in the Knesset. In recent years, Netanyahu, Gantz, and others have all changed Basic Laws in the process of forming coalition governments—which happened five times during the 2018–22 crisis in Israeli politics.
Proper reform should therefore start by changing the procedures for amending Basic Laws to immunize them from quick, ad hoc modifications motivated by political expediency. Proper reform should codify basic individual rights that have hitherto depended on judicial interpretation, including those enshrined in Israel’s Declaration of Independence, which says that “the state . . . will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Proper reform should also clarify the limits of executive action. Within such a constitutional framework, reform should also set boundaries to judicial and administrative review, which would become far less necessary and more clearly defined.
For the United States and other democratic international actors sympathetic to Israel, this crisis is a moment of truth. It is important that the international community maintain pressure on Netanyahu’s government to halt any constitutional overhaul that does not enjoy a consensus, just as a constitutional change in the United States would require broad bipartisan agreement. It should make clear it supports those who are defending Israeli democracy from within. Israeli democracy is already severely limited, given Israel’s decades-long military rule over Palestinians in the West Bank, who are not citizens, but that only makes the need to strengthen the country’s democratic institutions more crucial. Indeed, a central motivation for some advocates of the judicial revolution is to prevent the court from limiting Israeli settlement activity in the West Bank, as tepid as the court’s action on this has been in the past.
The irony is that appropriate institutional reform would have received widespread support from the opposition. Had Netanyahu’s government begun the process with the aim of finding a middle ground, all the drama and political and economic damage of the past six months could have been avoided. Instead, the camps facing each other in Israel are now clear adversaries, with one demanding unbridled majoritarianism and the other defending substantive democracy. It is essential that those who support democracy abroad choose the right side.
Copyright © 2023 National Endowment for Democracy
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