Netanyahu Surges Ahead With Judicial Overhaul, Prompting Fury in Israel
The leader of the opposition, Yair Lapid, said he feared the government’s plan could lead to the collapse of Israel’s democracy. A former defense minister, Benny Gantz, warned of civil war. A former army general, Yair Golan, called for widespread civil disobedience. In response, a government lawmaker, Zvika Fogel, called for all three to be arrested for “treason.”
Israeli political discourse, rarely calm, has been inflamed this week by the agenda laid out by the country’s new far-right government — and nothing has fueled it more than the government’s flagship policy: judicial change.
According to a detailed plan released Wednesday by the new justice minister, Yariv Levin, the government intends to reduce the Supreme Court’s ability to revoke laws passed in Parliament. If enacted by lawmakers in the coming months, Mr. Levin’s proposal would also give the government greater influence over who gets to be a judge.
Collectively, the two proposals would give more power to the government of the day, while reducing the influence of the judiciary. They also provide an early sense of the political direction in which the new Israeli government — an alliance of ultraconservative Jewish politicians, settler activists and opponents of a Palestinian state — intends to head, just two weeks after taking office in late December.
Under the first plan, a simple majority of lawmakers could override almost any revocation of parliamentary legislation by the Supreme Court, which can currently block laws on constitutional grounds.The court would only be able to prevent itself from being overruled by Parliament if all of its 15 judges unanimously agreed about the need to block a law.
Under the second plan, the government would be able to appoint a majority of the members of the panel that selects new judges, upending the current system in which government appointees form only a minority of panel members.
To the new government, these moves are a legitimate way to address a longstanding power imbalance between an overactive and unelected judiciary that selects its own members and that holds unreasonable veto power over democratically chosen representatives.
The changes, which still need to clear a lengthy process of parliamentary scrutiny, are “essential to the existence of democracy and restoring the public’s faith” in it, said Mr. Levin during a committee hearing in Parliament on Wednesday.
His supporters say the plans would make the Israeli Parliament no more powerful than other legislatures, like the House of Commons in the United Kingdom, and the judicial appointment process no more politicized than in the United States and some European countries.
But to opponents, the plans are a dangerous attempt to weaken Israel’s primary check on government overreach, the Supreme Court. The court has contested legislation roughly two dozen times since its powers were increased in the 1990s, according to legal experts.
Critics also say the government proposals will allow politicians to disproportionately fill judicial vacancies with their own allies, eroding the judiciary’s independence. And they fear that the mechanism might ultimately help Prime Minister Benjamin Netanyahu, who is standing trial for corruption, escape conviction or punishment.
Mr. Netanyahu has consistently denied any such intention, but some opponents believe the proposals could eventually allow Parliament to pass laws to limit or end his prosecution.
What to Know About Israel’s New Government
- Netanyahu’s Return: Benjamin Netanyahu has returned to power at the helm of the most right-wing administration in Israeli history. Now, many fear that his unelected family members could play an outsize role.
- A Hard-Right Agenda: The new government has moved quickly on several agenda items that would weaken the judiciary, entrench Israeli control of the West Bank and strengthen ultraconservative Jews.
- The Far Right’s Rise: To win election, Mr. Netanyahu and his far-right allies harnessed perceived threats to Israel’s Jewish identity after ethnic unrest and the subsequent inclusion of Arab lawmakers in the government.
- Ultra-Orthodox Parties: To preserve his new government, Mr. Netanyahu has made a string of promises to Israel’s ultra-Orthodox parties. Their push for greater autonomy has potentially broad-ranging implications.
“This is not a judicial reform but a hostile political takeover that, if implemented, would change the nature of Israel’s democracy,” said Tzipi Livni, a former justice minister who has led protests against the changes, in a text message.
A former prime minister, Ehud Barak, warned that “Israeli democracy is in certain and imminent danger of collapse” in a newspaper column published Thursday. “We may very well find ourselves forced to fight no matter which way we turn,” Mr. Barak wrote. “It is going to be hard. Work, sweat and tears. Let’s hope there isn’t any blood.”
The rancor of the debate reflects how far Israeli society has shifted in the decades since Mr. Netanyahu, Israel’s longest-serving prime minister, first entered Parliament in the late 1980s.
It was Mr. Netanyahu’s own colleagues in his Likud party who in 1992 helped give the Supreme Court greater influence over lawmaking. That was the year when lawmakers, including from Likud, enacted two new quasi-constitutional laws that enshrined certain basic rights — a move that was interpreted as requiring the Supreme Court to examine and, if necessary, revoke future legislation that endangered those rights.
“Likud approved it, was proud of it and said we’d continue it,” said Dan Meridor, a former politician who was the justice minister and a senior Likud member at the time.
Mr. Meridor said that while Likud had disagreed with other mainstream parties “on all sorts of things — land, peace and what have you — there was no real debate on the importance of an independent judiciary, and abiding by their decisions.”
The Supreme Court did have its critics. Ultra-Orthodox Jews resented the court for interventions that they felt harmed their conservative way of life. Settler activists disliked how the court occasionally — though not always — ruled against building or expanding settlements in parts of the occupied West Bank.
Over time, these groups became larger and more influential, as Israeli society shifted rightward. But they failed to curb the power of the court, in large part because Mr. Netanyahu, though often in coalition with settler leaders and ultra-Orthodox parties in the past, held back their ambitions to alter the judiciary.
That has now changed, said Dahlia Scheindlin, a Tel Aviv-based analyst at the Century Foundation, an American research group.
“Netanyahu nurtured and promoted religious and right-wing coalition partners as they battered the judiciary rhetorically — but he restrained their policies,” Ms. Scheindlin said. “He then finally took the reins when he himself found that the law was an unwanted interloper into his political ambitions.”
When Mr. Netanyahu entered office in 2009 for the second time, he notably did not pursue a similar program to change the courts that had been proposed by the outgoing minister of justice, Daniel Friedmann.
It was after the police began to investigate Mr. Netanyahu for corruption in 2016, culminating in a trial that continues today, that Mr. Netanyahu’s position changed.
Professor Friedmann, the former justice minister, said it was unclear if the trial had directly influenced the prime minister’s thinking.
“But certainly there is no doubt that there is change in his position,” Professor Friedmann said, “before and after the charge was brought against him.”
An early proponent of judicial change, Professor Friedmann still believes in the need to rein in judges. But he also believes the government’s proposals would tilt the balance of power too far in the other direction, giving the government too much control over judicial appointments and making it too easy for Parliament to override the court.
“The question is how far the changes should go, and they seem to be going a little too far,” he said.
Mr. Levin, the current justice minister, said in a briefing paper published on Wednesday night that the changes would return power to the Israeli people, partly by ensuring that the judiciary would better reflect the diversity of the Israeli population.
But while Mr. Levin’s right-wing bloc won a general election in November, subsequent polling suggests that a majority of Israelis do not support the concept of the changes.
More than half believe that the Supreme Court should continue to be able to strike down new laws, and only 16 percent want to give politicians more control over who gets to be a judge, according to a poll of 750 Israelis conducted in November by the Israel Democracy Institute, a Jerusalem-based research group.
The plans have also revitalized a street protest movement against Mr. Netanyahu, with thousands demonstrating in Tel Aviv last weekend and larger protests expected across the country on Saturday night.
“They want to take all power from the Supreme Court,” said Roi Goldstein, a 50-year-old brand manager at the demonstration last weekend. “And we will not stand by.”
Reporting was contributed by Nadav Gavrielov in Tel Aviv and Myra Noveck in Jerusalem.