Introduction
In early 2023, Israel’s longest-serving Prime Minister, Benjamin Netanyahu (Bibi), announced a series of reforms that functionally remove authority from the judiciary and eliminate the Supreme Court’s powers. The current government, which is the most conservative in Israel’s history, is often described as “ultranationalist,” “religious,” and “far-right.” The Israeli ‘far-right’ differs from the American ‘far-right’ by publicly and primarily taking an extreme stance on only the two most quintessential issues, religion and security. In contrast, the American ‘far-right’ publicly supports extreme economic and social views, engaging on a broad range of issues.
The judicial overhaul has increased the fervor of divisive factions in Israel, bringing to light the anti-democratic undertones of the ‘right.’ Bibi’s populist coalition argues that this overhaul aims to “strengthen democracy, rehabilitat[e] governance, restor[e] faith in the judicial system, and rebalanc[e] the three branches of the government.” Bibi’s overhaul is viewed as an action to protect himself and grab authoritarian-like power in the face of corruption, fraud, and bribery charges. Opposition leaders have called these changes an attack on democracy and have gone as far as stating, “this isn’t a reform–it’s a political coup.” Bibi portrays the overhaul as an overdue reform needed to strengthen governmental institutions; however, most sections of Israel’s diverse society publicly oppose it. Even parts of the military and reservists joined the protests by threatening to forgo their usual duties, creating a national security risk for the entire nation.
In an unprecedented, “fiery” address, the Chief Justice of the Israeli Supreme Court, who historically remains silent and neutral on Knesset business, stated the legislation is designed to “crush the justice system” and, if implemented, would cause “the seventy-fifth anniversary of Israel’s independence [to] be remembered as the year in which the country’s democratic identity was dealt a fatal blow.” Minority rights have historically been defended by the judicial system, leading the courts to hold particular importance in Israeli society due to these rights being under attack by other governmental institutions. The Court, through its rulings, has protected freedom of assembly, due process rights for asylum seekers and migrants, religious liberties, property rights for Palestinians in the West Bank, LGBTQ+ rights including marriage recognition and adoption, women’s rights, welfare benefits, freedom of expression—the list goes on. An influential Israeli law professor stated, “democracy is not just voting; it is also effective protection for minorities.”
Although massive historical protests and global pressures pushed Bibi to announce a delay in implementing the proposed judicial overhaul, much remains uncertain about what will happen next in Israel’s judicial crisis. Israel needs to codify a written constitution guaranteeing the balance of power between institutions to ensure a crisis is not repeated in the future. Israel was founded on strong democratic principles and the rule of law. Bibi’s current government is extreme, but Israel will nevertheless persist as a resilient model of a prosperous economy and liberal democratic society—notably enduring as the only democracy in the Middle East.
Background: Institutions of the Israeli Government
Israel is a parliamentary democracy that incorporates a multiparty system and independent institutions ensuring political rights and civil liberties. Israel operates under a system of checks and balances to ensure the balance of powers between three branches of government. Israel is one of five states with an uncodified constitution. Instead, thirteen Basic Laws are regarded as ‘quasi-constitutional’ in that they are the highest laws of the land. The Basic Laws deal with the formation of the State, the role of governmental institutions, and cooperation between Israel’s authorities. Many Basic Laws are based on individual liberties outlined in the Israeli Declaration of Independence, and some can only be changed with a supermajority of the Knesset. The Basic Laws also set out the structure of the three branches of the government: the executive, the legislative (Knesset), and the judiciary.
The executive branch comprises the President, the Prime Minister, and cabinet ministers. The President serves a ceremonial role, whereas the Prime Minister is the head of government and leader of the coalition within the Knesset. Cabinet ministers are appointed by and serve at the pleasure of the Prime Minister; these ministers have direct power over policymaking and daily governmental operations.
The Knesset is Israel’s unicameral parliament and holds legislative authority to pass laws and oversee government actions. The Knesset has 120 members, elected by popular vote to four-year terms. A coalition government, which commands the Knesset, is formed by an agreement between a majority of members of the Knesset (MKs).
The judiciary comprises three levels—the Supreme Court, district courts, and magistrates courts, the latter of which encompasses religious courts. The independent judiciary is responsible for interpreting and enforcing the laws of Israel. The Supreme Court has the power to review the executive and legislative branches’ actions and is made up of fifteen Justices directed by the Chief Justice.
Judicial Overhaul Proposals & Their Consequences
After assuming power, Bibi’s far-right coalition focused on a singular initiative: overhauling Israel’s institutions. Bibi aimed to quickly overhaul the judiciary by the end of March 2023, a goal that most voters were unaware of before his election. In mid-January 2023, the coalition introduced legislation that would dramatically overhaul the judiciary and remake Israel’s highest court. If enacted, it would be the most extensive modification to Israel’s government since its founding.
The Judicial Overhaul has Four Main Components:
(1) Restrict Judicial Review
Currently, the Supreme Court has the authority to review Knesset legislation and government decisions and may strike down a decision or piece of legislation if it violates or infringes upon a Basic Law. Generally, the Supreme Court Justices sit in three-member panels, with a majority of the panel approving decisions. The proposed overhaul would require a full panel of Justices to preside over a hearing to strike down Knesset legislation or a government policy decision and would require eighty percent unanimity among the Justices. Unless the Court is entirely unanimous in these ‘striking down actions,’ the Knesset could override the court’s decision with a simple majority—sixty-one MKs, well within the power of a majority coalition. If the court decides unanimously, the Knesset could not override the decision until a new session. Additionally, the proposed legislation removes the Supreme Court’s authority to hear arguments on annulling or limiting the Basic Laws.
(2) Change the Process of Appointing Justices
Currently, the Judicial Selection Committee—which is composed of politicians, judges, and Bar Association members—nominates, appoints, and dismisses judges and Supreme Court Justices. The committee has nine members and requires seven votes to approve a decision. The proposed overhaul would increase the committee to eleven members and require six votes to approve decisions.
Also, the overhaul would change the structure, increasing the number of government ministers from one to three; increase the number of MKs from two to three, without the guarantee that there would be a balance between majority and opposition coalitions, as is required now; and remove members of the Bar Association and replace them with two public representatives chosen by the Justice Minister.
(3) Abolish the ‘Reasonableness Test’
The overhaul limits the court’s capacity to review administrative decisions by abolishing the “reasonableness test.” The reasonableness test is applied to governmental decisions to determine whether they are reasonable and whether the government considered all relevant factors. Supporters of the overhaul argue that the reasonableness test is too vague and permits the court excessive control over the government.
(4) Limit the Authority of Government Legal Advisors
The legal advisor position is a professional career role in the government. Legal advisors ensure ministries and agencies are operating in accordance with the law and good governance. Legal advisors’ decisions are seen as binding on their respective ministry or agency. The overhaul would change the position from career advisors to political appointees, and would remove the legal advisors’ authority to make binding decisions.
These proposals drastically change Israel’s judiciary. The first main component of the overhaul effectively removes the Supreme Court’s power of judicial review. Since all majority coalitions must have at least sixty-one MKs, the court’s ability to exercise judicial review over any decision would be extremely limited and easily overturned by a self-interested coalition. Even with a unanimous vote from the Justices, the law could be reintroduced at the next session. Additionally, the Supreme Court will become powerless without authority to review Israel’s quasi-constitutional rights—akin to removing SCOTUS’s authority to rely on the US Constitution in reviewing Congress’ laws.
Second, the new composition of the Judicial Selection Committee would give the government control over seven of the eleven members; only six votes would be required to approve a decision. This effectively enables the majority coalition to control all judicial appointments and dismissals. Israel’s judicial system is largely successful because of the autonomy given to independent judges to enforce the rule of law and defend civil liberties; this overhaul would damage that autonomy.
Third, abolishing the reasonableness test would erode civil liberties. The court used this test to reverse government decisions to uphold diverse religious rights, guarantee protection from rockets for all civilians, and annul problematic political appointments.
Lastly, changing the role and appointment of the legal advisors will further compromise independence and neutrality. Right-wing advocates claim that legal advisors are an obstacle to enacting policies, stating that these changes would “restore the decision-making capability of the elected government.” However, removing the independence of legal advisors will undermine the rule of law while also leading to increased politicization, deterioration in the effectiveness of implementing policies, and decreased public trust in the government. Moreover, without an independent legal advisor reviewing laws and policies for legality, the government will lose the public’s presumption that government actions were well-considered.
Looking to the Future
On March 27, 2023, Bibi announced that the overhauls would be delayed until the next Knesset session. Israel, however, needs to implement a written foundational document to ensure a judicial crisis does not happen again. After Israel declared its independence in 1948, a constitution was not written, primarily because of the inability of various groups in Israeli society to agree on the purpose of the state, the state’s identity, and a long-term vision for the state. David Ben-Gurion, an influential figure and the first Prime Minister of Israel, opposed constitutional initiatives because he thought that a formal constitution would allow the Supreme Court to overrule his socialist policies. However, the Court has never struck down a Basic Law or an amendment to one. The Basic Laws were intended to be a draft of a future Israeli constitution, but Israelis have never been able to negotiate one.
The judicial overhaul is intended to give the Knesset ultimate authority without checks and balances—importing parliamentary sovereignty from the United Kingdom. A codified written constitution must guarantee that Israel’s institutions are separate and independent. A formalized constitution that protects the balance of powers is necessary to safeguard democracy. Nevertheless, Israel’s society and political factions remain divided to the point that commentators doubt the possibility of an agreed-upon comprehensive constitution.
Israel remains in crisis. The current political tensions regarding the balance of powers have been exacerbated in the absence of a formalized constitution. This time Bibi’s decades-long exploitation of social fissures went further than before. The people’s response has been a “resounding rejection of [Bibi’s] authoritarianism” manifested in nationwide protests.
Conclusion
Without a united front against Bibi’s coalition and a guarantee for a balance of powers in government, unresolved tensions will linger, and historic national protests will worsen, despite an announcement of a delayed overhaul. Notably, the White House recently issued an unprecedented warning: if Bibi continues with the overhaul, he will threaten the “shared values” of the United States-Israel relationship. Opponents of the proposed overhaul continue proclaiming the end of Israeli democracy, while others remain hopeful. All factions of Israeli society are struggling to keep Israel a democratic state while Bibi’s coalition is creating a situation where the Knesset has ultimate control, a shift in contradiction with Israel’s founding democratic principles.
The future of the judicial overhaul is unclear. Still, Israel needs to codify a written constitution that guarantees the balance of power between institutions to end the current overhaul and ensure that a judicial crisis will not arise in the future. Israel’s Prime Minister and the Knesset should carefully consider their next moves before they plan to implement an overhaul that would irrevocably damage Israel’s democratic institutions and international relations. The world will continue to closely watch the situation in Israel.
Author Biography: Joshua Cunningham is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. Candidate at The George Washington University Law School with a Concentration in International and Comparative Law. Joshua would like to extend special thanks to Samantha Hoover, Drew Weisberg, and all those who gave personal stories and perspectives for this article.
Editor: Drew Weisberg, GW Law School J.D. Candidate, 2024; Alexander Goodrich, GW Law School J.D. Candidate, 2024, ILPB Deputy-Moderator-in-Chief.