Currently, Israel is in turmoil in light of proposed judicial reforms. The unique character of Israeli constitutional law has been an issue for decades, but the newly formed Netanyahu government has made it a priority to push for these reforms.
The judicial reforms would effectively weaken the powers of Israel’s Supreme Court, according to Al Jazeera. As a result, the opposition is going to the streets, organizing mass demonstrations and galvanizing its voter base, notes Reuters.
The History of Constitutional Law in Israel
Israel does not have a written constitution. After the establishment of Israel in 1948, its first prime minister, David Ben-Gurion, intended to push for the creation of a constitution, but he soon changed his mind.
Ben-Gurion changed his mind for two reasons. According to the Jewish Virtual Library, there was the war between Israel and several Arab countries that did not end until mid-1949, but he also realized that there was no clear constitutional common ground.
Instead, Ben-Gurion decided to have a gradual evolution of a constitution by passing what he called “basic laws.” Those laws had a special status and were intended to become parts of a full-fledged constitution over time. But when those “basic laws” were passed, it was clear they were regular laws without any special status.
The next few decades saw a very slow evolution of constitutional principles developed by the judicial section of the Israeli government. But the situation changed in 1992 when two more basic laws were passed in the dead of night, according to the Knesset’s website.
No one thought much of those laws. To most Knesset members, they seemed to be no more than a declaratory statement by the Israeli parliament on the supremacy of human dignity.
But a few months later, the Israeli Supreme Court under the leadership of then-Chief Justice Aharon Barak declared that those laws were supreme laws. They would enable the Supreme Court to conduct judicial review of lower-level legislation and strike down laws that contradict principles that the Supreme Court identified as constitutional, based on these basic laws.
Professor Gideon Sapir, an Israeli connotational law expert, wrote in one of his academic articles that this constitutional revolution failed to see how controversial it was. As a result, the Supreme Court in Israel became identified with the elitist left.
The Supreme Court had been politicized before the passing of the supreme laws, but that politicization has further intensified since the time of Chief Justice Barak. His judicial philosophy has been celebrated by liberal jurists like Supreme Court Justice Elena Kagan and vehemently critiqued by the conservative judicial maverick Judge Richard Posner, according to the Jewish Telegraphic Agency and The National Review.
[Related article: The New Israeli Government: Will Netanyahu Keep It Stable?]
Why These Judicial Reforms Are Causing a Crisis
So why are the proposed judicial reforms causing a crisis and why are demonstrators appearing in the streets? When I clerked in the Israeli Supreme Court in 2004, Aharon Barak was still Chief Justice. His judicial philosophy was ruling prominent in the Israeli judiciary system.
But Barak’s judicial philosophy failed to garner popular support in the growing ranks of the Israeli political right. It was always part of their political discourse that by legislating from the court bench, the judiciary system prevents right-wing politicians from their advancing conservative agendas. After the Netanyahu victory in 2022, his Minister of Justice, Attorney Yariv Levin, set out to change things and has proposed three new judicial reforms, according to the BBC.
The first reform would permit the use of an “override clause.” This clause would enable the Knesset to reverse Supreme Court decisions to overturn legislation, providing that the Knesset had a majority vote (61 members out of 120).
The second reform would change the way judges are appointed in Israel. Until today, the selection committee has three supreme court justices, two lawyers appointed by the Israeli bar association, two Knesset members and two ministers. Now, Levin suggests making elected officials the majority of the selection committee and including a public hearing on those appointees, similar to the process conducted in the U.S.
The third reform would eliminate the legal concept of “lack of reasonableness.” This concept is a criterion in Israeli law, allowing the judiciary to cancel administrative decisions.
The opposition has declared these reforms to be a dangerous suggestion that could turn Israel into an authoritarian government, similar to Poland, Hungary and Turkey. Justice Barak, now retired, said to the Jerusalem Post that “If these plans come true, we will have a formal democracy, a democracy with no balance. In fact, we will have only one authority – the prime minister, because the court will cease to fulfill the normal functions it fulfills in a democratic society. And that’s not democracy…there is no greater evil than this constitutional revolution, which is parallel to a revolution with tanks.”
Israel: Politics Have Long Been Melodramatic
In Israel, the political discourse in the Knesset has always been melodramatic. It is part and parcel of the Israeli political culture.
Because there are people involved in Israeli politics around the world, this debate has become front-page news in major newspapers around the world. In The New York Times, for instance, Thomas Freidman warned against the dangers of these judicial reforms. Similarly, Wall Street Journal opinion columnists Richard Epstein and Max Raskin supported more checks and balances in the complex Israeli political system.
There are already voices in Israel who are calling for a compromise. In Israel’s judiciary system and law schools, there are people who support some changes to Israel’s current system. The Jerusalem Post notes that Israeli President Isaac Herzog has been attempting to mediate between opposing parties and create a compromise.
Netanyahu’s Silence on the Proposed Judicial Reforms Is Not a Sign of Weakness
These proposed judicial reforms have galvanized the Israeli opposition that is united on only one front: anti-Netanyahu sentiments. The strong opposition to the reforms is also a lesson to Netanyahu’s right-wing partners that their verbose and bravado have limited efficacy in the real world.
The left interprets Netanyahu’s relative silence on the judicial reforms as weakness, but that could be a ploy by the master politician. Netanyahu is simply showing everyone around him that he is actually in control.
Netanyahu’s right-wing partners, who are political novices, are learning that governance is complicated and cannot be done by issuing vociferous statements on social media about judicial reforms and other issues. The opposition is learning that Netanyahu is going nowhere; the end of his political career will come when he chooses the moment and no one else.