Breaking Down the Judicial Reform: What the Heck is Going on in Israel?
Let’s dive into the proposed Judicial Reform. I’ll present both sides, the background, and let you form your own opinion.
The Background: What’s this hullabaloo all about anyway?
After Israel was founded, the new lawmakers failed to ever agree on, let alone ratify, a constitution. A constitution would have been nice because it theoretically would have spelled out what the roles of the Knesset, Israel’s parliament, and the Supreme Court are supposed to be. Unfortunately, because of the lack of a constitution in Israel, the role of the Supreme Court is not clearly defined, creating the current power struggle. In an ideal world, each would serve as check on the other. Instead of a constitution, Israel has “Basic Laws” that function as a quasi-constitution.
For many years, this system worked and there was an understanding between the Knesset and the Supreme Court on how things were supposed to work, that is, until the 1990s. In the 1990s, Chief Justice Aharon Barak took a more activist approach to deciding what the Knesset can and can’t do. The Supreme Court got more involved in the government’s business, angering some members of the Knesset, particularly on the Israeli right.
With the election of Benjamin Netanyahu and his right-wing government, one critical issue for the coalition has been judicial reform. The Israeli Right has felt that when the Supreme Court has intervened, it leans to the political Left and therefore harms the Right’s interests and ability to enact laws they see fit. To be fair, many of the Left also agree that the Court has overstepped its “mandate” and some sort of reform is indeed needed.
Got it, there’s no constitution and some want a reform. What’s the plan? And why are there so many protests?
Before we delve into the specifics of the reform, let’s visualize it. In an ideal democracy, the supreme court and parliament would balance each other out equally in power. Two equal balloons, working in harmony, on behalf of the nation:
But according to the Israeli Right, one balloon (the Court) is bigger than the other (the Knesset) and has more power than it should, causing a constant power struggle:
The Israeli Right believes that it is bringing the judicial system to the ideal balance, as seen in Exhibit A. The Israeli Left thinks that the Israeli Right is trying to diminish the Supreme Court to the point that…
You get the point.
Essentially, the Israeli Right views the Supreme Court as way more powerful than not only what it should be, but also more powerful than the Knesset itself, the democratically elected representative of the people. The Court has usurped power from the Knesset, and according to the Israeli Right, that in and of itself is undemocratic. But according to the Israeli Left, the proposed reform creates a power imbalance between the two, essentially neutering the Supreme Court and letting the Knesset do as it sees fit.
Those opposing the plan have really come out strong, as you’ve probably seen in the news. The protestors and detractors of the plan blatantly say that this reform would spell the end of Israel as a liberal democracy, leave civil liberties in question, and leave minorities unprotected, since there would be no court to ensure said safeties. Even Member of Knesset (MK) Simcha Rothman, Chair of the Law, Judiciary, and Constitution Committee in the Knesset and one of the main promoters of the reform, admitted that the right to vote would be unprotected, in theory. As a friend of mine serving in Israel as a diplomat from a foreign country said to me tonight, “this could be just the beginning. Look where other illiberal countries started, with reforms like this.”
At the same time, the coalition has come out and said this effectively restores the public’s voice in the judiciary and legislature. Moreover, in response to these criticisms, they have sought to play down the fears. They have consistently explained that they have no intention to harm civil liberties or minority rights and that the reform does none of what its accusers are saying it does. In a clip circulating on social media last week, MK Bezalel Smotrich, Finance Minister and supporter of the reform, was asked who will ensure human rights, to which he promptly responded himself.
OK, I get the gist of it. But what’s in the reform?
The reform is quite extensive and represents a major overhaul to the judicial system. There are a number of key changes as part of a larger package, which are not all being voted on at once. I’ll elaborate on three of the more controversial and important ones. If you’re not interested in the nuances, feel free to scroll to the next section about the protests.
I. How judges are appointed
For starters, one of the proposed measures would change the process in how and who gets to pick the Supreme Court judges in the first place. Currently, there is a nine-person panel, consisting of 2 lawyers, 3 Supreme Court judges, 3 members of the governing coalition and 1 member from the opposition. For a judge to be appointed, a majority of 7, not 5, is needed on this committee. This essentially gives the 3 Supreme Court justices a veto on whoever their next colleague is.
The Israeli Right feels this is undemocratic. Who sits on the Supreme Court should be decided by the Knesset, the democratically elected body, and this current composition gives unelected representatives an automatic veto, according to them. As an additional motivation, as mentioned, they also feel that the Supreme Court favors the Left.
There are a few versions of the proposed reform, but the idea is the same in each case. It would change the composition of the committee, instead creating a panel with a majority of politicians, all from the coalition except one from the opposition, thereby only needing elected representatives’ votes to approve a new judge. The judges would no longer have veto of who can be their next colleague.
Supporters of this part of the legislation argue that it actually makes the process of picking new judges more democratic, as elected officials instead of private citizens actually appoint new judges. Nevertheless, detractors say this essentially allows the coalition to appoint any judge that it wants.
II. Who has the final say?
Once a judge is already appointed, a portion of the reforms essentially deal with who has the final say on law, the Court or the Knesset? In the status quo, the Supreme Court can declare a law enacted by the Knesset illegal by simple majority, similar to the US. The proposed reform would change this, requiring a super-majority of 12 of the 15 judges to declare the law illegal instead of a simple-majority, making it much harder for the Court to overturn anything.
Additionally, and this is perhaps the most controversial piece of the legislation, is that any law that the Supreme Court does overturn, the Knesset can re-institute the law with a simple majority of 61 members of the Knesset, meaning that essentially, the coalition can do what it wants. This is what is called the “override clause” in the media. Detractors say that this leaves the governing coalition too powerful, especially in the absence of a constitution, with no one to check its power, especially if the government does not represent minorities, but supporters argue that specifically because there is no constitution, this gives power back to the Knesset that was unfairly usurped by the Courts and makes it a more democratic process, since the coalition was elected and the Supreme Court has no defined powers.
The override clause is why people are calling the reform the end of Israel’s democracy and a threat to human rights because technically, the government could do as it pleases with a simple majority, including targeting minorities. Nevertheless, at an event I attended a few weeks ago with MK Simcha Rothman, he explained the logic of 61 and not, say, 80, a 2/3rds majority. He said that 80 would be too high of a bar that would never be reached, but he did say that he hopes they would never have to use the override clause. Whether you believe him or not is your call.
III. What can the Court Judge on?
Another similar issue is on what grounds can a law be disqualified? After all, there is no constitution, so what makes a law inherently illegal? (Except for if it contradicts the existing laws).
The Supreme Court has been using an idea in Israeli jurisprudence, translated as “reasonability,” to disqualify certain pieces of legislation. The thinking goes that so long as a piece of legislation is “unreasonable,” the Court can disqualify it. Although there is not a defined standard, a common definition of an unreasonable law is one that puts political interests ahead of the public’s own interests and security. The proposed reform would nullify the Court’s ability to use the “reasonability” standard.
This is consistent with the ideology of the Israeli Right. They think the Court usurped power and consistently decide their right-wing initiatives in the Knesset as “unreasonable.” The Right also decry the lack of a definition of this. As Ben Shapiro put it (not an endorsement), “Whatever we [the Supreme Court] don’t like, we can strike down.”
Thanks for explaining that, Marc.
Sure, no problem. I’ll see you n—
Not so fast! That’s what all of the protests are about? And have they been effective at all?
Mostly. In addition to what the Left sees as a power grab by the right-wing coalition, it’s also the way that they’re doing it. This is without a doubt a reform that will change the bones of Israeli democracy. It will alter the balance of power between the Knesset and the Supreme Court. How much and is this a good thing depends on who you ask.
But instead of building consensus amongst the nation, the coalition is trying to push it through using its majority. As I mentioned, many in Israel, both on the Left and the Right, believe judicial reform is necessary. Prominent members of the opposition believe we need a reform, maybe not even so dissimilar to this one. Avigdor Liberman, Gidon Sa’ar, and others want change. But not like this. Even many on the Right have come out against what the government is doing— last Saturday night there was an Israeli Right protest against the way the government was going about changing the system.
Regarding the effectiveness of the protests, it’s tough to define effective. It’s clear the nation is divided yet the reform continues to be pushed through the Knesset, so the protests haven’t achieved there stated aims. At the same time, they are certainly getting everyone’s attention, including the President’s. In Israel, the Presidency is largely symbolic. The President stays out of politics; yet the political turmoil forced President Yitzchok Herzog to break tradition and intervene, trying to negotiate between the two sides. His impassioned speech validating the concerns of both the Left and the Right called for compromise for the sake of the nation. His plea was well received on both sides and in the public, but so far, has not borne any fruit (at least publicly).
Protestors have been successful, however, in affecting the economy, which is helping them apply pressure on the government. With the political turmoil, 14 billion shekel have already been pulled out of the economy, the shekel has weakened dramatically, and international investors are getting spooked over the future uncertainty. Since a large part of economics is psychological, the protestors have been stoking fear amongst international investors, succeeding in pressuring the governing coalition to an extent. On top of that, the Bank of Israel and private banks have warned that the judicial reform could hurt the economy since there would be no check on the legislature, who theoretically could pass whatever law it wanted, even a law the business community is against, now matter how unlikely that may be. Today, the Bank of Israel said that an economic crisis could happen at any moment and Finance Minister Smotrich acknowledged that things could take a turn for the worse.
So…. Where are we now? And where are we going?
We’ve seemingly hit a dead end. There was some chatter of the two sides meeting with the President to negotiate a deal, but not any in recent days. The coalition, under enormous economic, international, and domestic pressure, has said they are willing to negotiate without preconditions, which is good. At the same time though, they’re advancing parts of the reform through the Knesset. (To become law, a piece of legislation must pass a committee vote and then three times in the Knesset— so far, the first piece has passed once in the Knesset). The coalition is willing to negotiate, but since they were elected with the mandate to do this, they are going to continue advancing the law in the legislature. Opposition leaders, namely Yair Lapid and Benny Gantz, have given the precondition to negotiation on stopping the advancement of the legislation through the Knesset. Driven by a deep mistrust of Bibi, they claim that the coalition’s offer to negotiate is insincere since they are still advancing the legislation. Both sides refuse to back down from their posture.
The way forward is murky. It seems that some in Likud are ready to compromise, but are being held back by more extreme elements in the party. A former MK from the Likud, a party in the ruling coalition, told me that all of this is all classic politics and obviously they’ll reach a compromise. Current Likud MK Yuli Edelstein agrees. But who knows. From a legal standpoint, they really don’t need to.
Important News Blurb
Oman announced today that they’'ll let all civilian airlines fly over their airspace, something that was forbidden up until yesterday. This hopefully will lead to cheaper and shorter flights to Southeast Asia from Israel!