Netanyahu’s Legal Troubles Could Be Helped by Israel’s Judicial Reform, Experts Say
With the prime minister’s corruption trial slowly progressing in the background, the massive overhaul of Israel’s judicial system is barreling ahead; one expert derisively calls part of this legislation the “Stasi Law”
The political drama in Israel continues to unfold at a dizzying pace, as the government pushes forward with a massive judicial overhaul while the prime minister’s legal fate hangs in the balance.
After a lengthy overnight session, Israel’s parliament, the Knesset, early Tuesday morning approved a preliminary reading of a bill that would pose a major hurdle to ousting Binyamin Netanyahu due to his legal troubles. The so-called incapacity law would allow the Knesset to determine a prime minister unfit to rule only on the grounds of physical or mental incapacity.
Netanyahu has been on trial on several charges of corruption since 2020. The investigation into his alleged wrongdoing has overshadowed the entire political system since it began in 2016.
The office of Israel’s Attorney General Gali Baharav-Miara has denied that she held discussions on declaring Netanyahu unfit because of conflict of interest due to his trial. Still, it appears that the government, which was sworn in at the end of December, was quick to devise the law in order to prevent any chances of that happening.
The trial against Netanyahu on charges of fraud, breach of trust and corruption has been dragging on for three years, with hundreds of witnesses yet to be called and no end in sight. Netanyahu has denied any wrongdoing and claims that the authorities are conducting a witch hunt against him.
Netanyahu has portrayed his trial as a case against his supporters and the entire right-wing and made his eligibility to rule the main issue of his party’s election campaigns. This narrative has, in part, plunged Israel into five elections in four years.
Israeli law does not forbid a prime minister from remaining in office while on trial. Meanwhile, appeals to the Supreme Court claiming Netanyahu must be declared unfit to rule and barred from running for office have been rejected.
The judicial overhaul includes legislation giving the Knesset the ability to override Supreme Court rulings with a simple majority and giving politicians greater weight in the appointment of all judges – including Supreme Court judges, which would completely change the way the system functions.
The government has said it aims to complete passage of the legislation for the first part of the reforms by the end of this month. Headed for final approval during this period are the Knesset override clause, the ability to cancel quasi-constitutional Basic Laws, the changes to the judge selection committee and the incapacity law.
Critics of the reforms say they will destroy Israel’s delicate system of checks and balances. They believe the courts will be weakened and the ruling government coalition will be able to hold limitless power. Because it does not have a formal constitution, Israel relies heavily on the courts to rule on a wide range of contentious matters. Netanyahu’s opponents believe his push for the overhaul is personally motivated, as part of an attempt to influence the outcome of his trial.
“The so called reforms and additional laws being legislated now directly serve Netanyahu’s interests,” said attorney Dr. Gal Levertov, an expert in criminal and international law and a former director of the Department of International Affairs of Israel’s Office of the State Attorney. “Netanyahu and his allies are directly targeting Israeli democracy,” Levertov asserted.
One of the laws being promoted by the coalition will bring the unit in charge of investigating police officers under the authority of the Justice Ministry, giving it the added authority of investigating prosecutors on suspicion of wrongdoing. Today, this unit is under the attorney general’s office and can only investigate alleged crimes committed by police forces.
Levertov calls this the “Stasi Law,” referring to the state security service of East Germany.
“Such a process will allow intimidation of the lawyers who are handling the Netanyahu case and, in the end, will pressure law enforcement to obey the authority of the leader,” Levertov added.
Pressure from the right wing grew greater as the legal system’s infringement on the political system expanded. The mindset of the judicial system became radicalized and did not recognize that the power of the legal system has boundaries.
Netanyahu, leader of the right-wing Likud party, is Israel’s longest serving prime minister with an accumulated over 15 years in office, during which he has had time to reform the judicial system.
Before his trial, Netanyahu was an avid defender of the courts. His legal predicament has most certainly changed that, critics say. Yet, many supporters of the reforms deny the connection.
“What we are seeing is a counterreaction in large parts of the right wing that feel that, while they have been in power for many years, they are unable to govern due to the constraints of the Supreme Court that has become too powerful over the years,” said Professor Moshe Cohen-Eliya, an expert in comparative constitutional law and former president of the College of Law and Business in Ramat Gan. “Netanyahu for many years was a barrier to that sentiment, as part of the right-wing elite that saw the Supreme Court as playing an important role in parliamentary democracy.”
The latest election gave a clear-cut victory to the right-wing, enabling the judicial overhaul. Barring goodwill and with a solid majority in the Knesset, the Netanyahu government appears able to legislate any law it wants.
“Pressure from the right wing grew greater as the legal system’s infringement on the political system expanded,” according to Cohen-Eliya. “The mindset of the judicial system became radicalized and did not recognize that the power of the legal system has boundaries.”
“Netanyahu in the end was convinced that there needs to be a change, but now he also lacks the goodwill to defend the judicial system, which he perceives to be hunting him,” he said.
Netanyahu’s mindset regarding the court’s authority has changed over the years.
“Before his indictment, Netanyahu emphasized the importance of an independent court and declared he will never allow this to be changed,” said Levertov.
Proponents of the overhaul compare Israel to other democratic countries, saying the reforms will make it more democratic. But Israel is different than most of those countries, since it has only one legislative house, does not have a constitution or a bill of rights and is not subject to any external judicial review. There is no real separation between the government and the parliament, which, due to the nature of Israeli parliamentary democracy, is ruled by the coalition.
Members of the opposition acknowledge the need for changes in the legal system. They are asking for a greater public discourse on the extent of the changes. Since the government was sworn in late last year, there have been countless legislative proposals that touch on every aspect of the legal system, daily life and civil rights in the country.
“Israel is facing a massive legislation blitz and the public doesn’t know what to deal with first,” said Levertov.
Cohen-Eliya also uses the term “blitzkrieg” to describe the coalition’s “carefully planned, multi-directional” assault on the judicial system immediately after the election. Cohen-Eliya, who is conducting research together with Professor Iddo Porat on how to reduce polarization in institutions and courts, sees political polarization as a leading factor in undermining the legitimacy of supreme courts around the world.
Israel is no different than other countries when it comes to political polarization. With a highly fragmented society, the current political debate is being conducted on very fertile ground. The Netanyahu trial, which has further ripped the country apart, has merely mirrored this fragmentation.
Meanwhile, the trial continues to progress at a snail’s pace as opposed to the whirlwind the country is in over the current judicial overhaul.
According to Levertov, a former state prosecutor who – among many other cases he handled – prosecuted the corruption case against then-Knesset member Omri Sharon, son of the late Israeli Prime Minister Ariel Sharon, the current slow pace of the Netanyahu trial is largely due to the “severe conditions” the case is under.
“As a result of the pressure, the court allows for longer cross-examinations of witnesses,” Levertov explained. “The pressure adds to the delay of the trial, and the prosecutors and witnesses are under explicit threats.”
Some of the main legal figures in the trial have been given personal security protection in response to threats.
It looks quite obvious that a person who is in complete conflict of interest is operating in order to crush Israeli democracy so that he can promote his personal interests. It seems very reasonable to believe that if Netanyahu thought there was not a strong case against him in court, he would not have inserted Israel into this terrible tailspin.
A trial held in parallel to the sweeping reforms makes it “impossible” to conduct the legal proceedings, Levertov believes.
One of the pieces of legislation waiting for final readings in order to be enshrined in law will change the composition of the judicial selection committee. It will give the ruling coalition an automatic majority with only one member of the opposition on the committee. It also will allow for a simple majority to appoint a justice to the Supreme Court.
The coalition says that the current sitting justices are not diverse enough and do not reflect all parts of society.
Unless all of the current judges abruptly resign in response to the reforms, the process by which different judges will be appointed will be gradual. Netanyahu’s opponents insist the change in the composition of the selection committee will directly influence his trial, since he will appeal a guilty verdict to the Supreme Court.
“It looks quite obvious that a person who is in complete conflict of interest is operating in order to crush Israeli democracy so that he can promote his personal interests,” said Levertov. “It seems very reasonable to believe that if Netanyahu thought there was not a strong case against him in court, he would not have inserted Israel into this terrible tailspin.”
Since the allegations against Netanyahu were first made public, Israeli citizens have been divided on how it was handled.
“The trial should have been canceled,” said Cohen-Eliya. “It has poisoned society and has the potential of collapsing the country.”
These tensions have now boiled over – including mass demonstrations and harsh words on the part of politicians – with no clear end in sight.