After Months of Buildup, Israeli Parliament Approves First Judicial Overhaul Law, Plunging Country Into Crisis

A contentious amendment to Israel’s basic law, preventing the High Court of Justice from judging the reasonability of government decisions, prompts wide-scale protest, legal challenges, and fear of damage to Israeli democracy

The clashes between Israeli citizens and police in front of the parliament building in Jerusalem on Monday as a contentious vote was being held in the plenum produced scenes rarely witnessed in the country. Demonstrators chained themselves to the scorching hot concrete road as policemen tried to forcibly remove them.

Israel’s parliament, the Knesset, approved a law that is part of a government effort to overhaul the judicial system, a move that has drawn major criticism from the opposition, large portions of Israeli society, and the United States.

Lawmakers from the opposition did not participate in the vote, storming out in protest, shouting “shame” at coalition members.

The passing of the law has the potential of plunging Israel into a constitutional crisis, putting the different branches of government in serious conflict. But for now, the government is celebrating a victory after facing fierce opposition. This victory may be short-lived.

“We have just taken the first step in the important historical process of fixing the judicial system and regaining the authorities that were taken from the government and the Knesset for many years,” said a satisfied Justice Minister Yariv Levin.

Prime Minister Benjamin Netanyahu arrived at the Knesset just before the vote began, rushing straight from a Tel Aviv hospital, a day after he underwent a procedure to implant a pacemaker for his heart.

In the hours before the vote, attempts were made to reach a compromise between the sides on the law that bars Israel’s High Court of Justice from using the “reasonability standard” when reviewing decisions made by the government, cabinet ministers, and other government officials. For opponents, the law is seen as promoting corruption. For the victorious coalition, it brings hope that they will be able to remove any hurdles that they perceive are barring them from governing.

Before the vote, Israeli President Isaac Herzog said the country is “in a state of national emergency.” Herzog has been behind the failed efforts to reach a compromise in recent months.

After being sworn in late last year, the coalition embarked on a legislation blitz that was not only aimed at changing the judiciary but touched almost every aspect of civilian life in the country. It raised concern among the opposition that the government’s divisive plan was trying to change the face of the nation.

The right wing believes the courts have gained too much power in recent decades, often intervening in political matters. In their original form, the reforms included giving parliament the ability to override Supreme Court rulings with a simple majority. In addition, the government wanted to give politicians greater influence in the appointment of Supreme Court justices and legal advisers to ministries, allowing them to be political appointments and no longer civil servants.

This is not a victory for the coalition, this is a defeat for Israeli democracy

Opponents of the reforms say they constitute a judicial “coup,” and are concerned the courts will be significantly weakened, posing a serious threat to the future of Israeli democracy.

“This is not a victory for the coalition, this is a defeat for Israeli democracy,” said Opposition Leader Yair Lapid minutes after the vote. Lapid announced he would be behind a petition to the Supreme Court against the reasonability law. Other petitions are also expected, threatening to plunge the nation into a constitutional crisis.

“This is the greatest crisis Israel has ever faced,” Lapid added.

If the Supreme Court strikes down constitutional amendments as being somehow unconstitutional, it effectively asserts unbridled power for itself

Professor Eugene Kontorovich, of the Antonin Scalia School of Law at George Mason University, told The Media Line that the High Court of Justice could hear multiple petitions to restore the reasonability standard because “in Israel, the Supreme Court has eliminated any restrictions on its jurisdiction, such as standing, ripeness, or political question, used by courts in the US to limit their own power and preserve checks and balances.” Thus, he says, “anyone can challenge any law at any time.”

However, in this case, the law in question is an amendment to a basic law, which the court has previously treated as having constitutional status. “If the Supreme Court strikes down constitutional amendments as being somehow unconstitutional, it effectively asserts unbridled power for itself. Hopefully, the court will not act as a judge in its own case.”

Kontorovich thinks it is “still possible and desirable to reach compromises about judicial reform with the opposition when the Knesset resumes its session” after the summer recess.

“Without the reasonability standard, and if other standards will also be erased, we could see the firing of the attorney general and other legal counsels,” Professor Daphna Hacker, from the Buchmann Faculty of Law and Gender Studies at Tel Aviv University and a member of the Israeli Law Professors’ Forum for Democracy, told The Media Line. “If the Supreme Court rules that the government is not allowed to take certain actions and the government takes them anyway, this is a constitutional crisis. This means the government has stopped acting according to the rules of democracy that still exist.”

“There will be a big question of who bodies such as the army and other security institutions will obey,” she added.

Attorney Ze’ev Lev, legal counsel for the Movement for Governability and Democracy, told The Media Line that the Supreme Court would not strike down the new law. The removal of the reasonability standard comes as an amendment to Basic Law: The Judiciary. Lev questions the authority of the high court to strike down elements of basic laws.

For the government, the law passed on Monday was not the centerpiece of its efforts but rather a compromise based on the realization that the wider moves were too controversial to pass.

“The law does not have huge importance in the larger reform,” said Lev. “The reasonability standard was a wild card the court was able to use in any situation, as opposed to other more defined and objective standards. This amendment begins to correct the relations between the executive branch and the judiciary.”

The struggle for the reforms has taken over the agenda of the country and torn it apart. Weekly demonstrations held by opponents of Netanyahu have gathered tens of thousands of Israelis from all walks of life. Violent incidents and clashes with police have grown in intensity.

In late March, after weeks of demonstrations, Netanyahu announced he was freezing the legislation and entering talks to reach a compromise with the opposition.

This came after the Israeli premier announced the firing of his defense minister, Yoav Gallant, for warning of the reform’s dangers. A significant portion of his supporters were against the move. There was also a feeling among more moderate right-wing supporters that the legislation blitz was too aggressive. Netanyahu later backtracked on the sacking of Gallant, who remains in his position and voted with the coalition on the reasonability law on Monday.

Last month, after weeks of negotiations, the sides failed to reach an agreement on the judicial selection committee and the talks collapsed. This reignited the protest movement. Simultaneously, Netanyahu and his coalition then resumed the one-sided legislation, using their parliamentary majority, without seeking a broader consensus.

“We are all in shock, struggling while trying to digest the size of the fracture,” said Hacker. “Even as a pessimist, I never imagined how much they don’t care about the other side and about the economy. I never thought they would be willing to make Israel a failing state.”

After the law was approved, the Tel Aviv Stock Exchange began to crash and the local currency, the shekel, began to weaken against the dollar.

One of the main concerns opponents have raised is that the Israeli economy will suffer immense losses due to the judicial reform.

Even before the legislation began, the unrest in the country has brought a continuous devaluation of the shekel and a drop in investments in Israeli high-tech, which is considered the main engine driving the country’s economy.

Another criticism of the government reforms relates to Netanyahu’s motivation to promote it after years of being in power without touching the judiciary. The opposition believes the move is personally motivated by Netanyahu, who is on trial for corruption and wants to be able to change the outcome of the case. The prime minister, who denies any wrongdoing, also denies that a personal motivation exists.

Throughout his years in power, Netanyahu has accumulated a long list of politicians disappointed by promises undelivered. The opposition is especially wary of any promises he makes, including promises made to US President Joe Biden that he would seek a broad consensus on the rest of the judicial overhaul.

“In the past few days, Netanyahu has lied to the public repeatedly about his health, despite a legal obligation [to disclose the truth]; why should I believe anything he says?” Hacker asked.

In the past week, in another whirling development, Netanyahu was hospitalized. In statements released by both his office and Sheba Medical Center in Tel Hashomer, the premier was said to have suffered from dehydration and was fitted with a heart monitor as a precaution. Days later, Netanyahu was rushed to hospital after an abnormality was detected by the monitor. In an emergency procedure, a pacemaker was implanted early Sunday. Critics of Netanyahu said he was not transparent and accused him of hiding important details about his health, suggesting a preexisting heart condition was concealed from the public. The seemingly small event fueled further distrust between the premier and his rivals.

At the end of this week, the Knesset will begin its summer recess, reconvening in the early fall. Netanyahu’s partners vowed to push forward with the reforms and the protesters promised to continue with their resistance.

“There will now be a few months without legislation,” said Lev. “Assuming the Supreme Court will not accept the petitions, the average Israeli will realize that there was unnecessary panic and the government will be able to promote the reforms in a calmer manner with an honest attempt to reach a compromise.”

As protesters filled the streets of Jerusalem after the vote and clashed with police, compromise seems more distant than ever before.

Video: Aaron Poris and Dario Sanchez