Emad Mekay, IBA Middle East CorrespondentTuesday 26 September 2023
Image caption: Israelis take part in a demonstration against Israeli Prime Minister Benjamin Netanyahu and his nationalist coalition government’s judicial overhaul, in Tel Aviv, Israel September 2, 2023. REUTERS/Oren Alon.
This feature was written and published before the events of 7 October.
The Israeli government led by Prime Minister Benjamin Netanyahu is seeking to reduce the Supreme Court’s independence, raising serious concerns and prompting widespread demonstrations. Global Insight assesses the implications.
Judges of the Supreme Court of Israel are in an unenviable position. They’re looking into a case that could redefine their own job description, limit their authority and bring all 15 judges on the bench under the sway of the executive branch for the first time in the country’s 75-year existence – a scenario that could eventually slide into a constitutional crisis.
President of the International Bar Association, Almudena Arpón de Mendívil, says, ‘The IBA is profoundly concerned with the proposed reforms to the legal system in Israel, which would seriously undermine the independence of the judiciary, including the Supreme Court, and dismantle legal checks on executive power.’
The case, which is likely to take the Supreme Court months to adjudicate, is part of an impassioned debate Israelis have been having for nine months now about the future of the judicial institutions of their country. The firestorm began in January when the ruling far-right coalition introduced a controversial bill to overhaul the country’s justice system and pack the Supreme Court.
In the case of constitutional crises, the administration will undoubtedly obey the court. The principle of the rule of law is an entrenched one in Israeli society
Professor of Law, The Hebrew University of Jerusalem
The move has sparked fierce opposition from centre-left, liberal and secular Jewish Israelis, who fear the bill may undermine the rule of law, reduce judicial guarantees needed for the country’s business operation and hurt the country’s representation system.
‘Judicial independence is a fundamental pillar of the rule of law and is an essential component in the operation of a modern democratic state’, says Stephen Denyer, Co-Chair of the IBA Rule of Law Forum. ‘Without judicial independence you don’t have the rule of law and without the rule of law you don’t have all of the necessary ingredients for a free and open democratic state to operate. That obviously encompasses within it the judiciary being independent of government influence and demands.’
Amending basic laws
But the government of Israeli Prime Minister Benjamin Netanyahu, sworn into office at the end of December 2022, has set out to do exactly that – force the Supreme Court to toe their political line on a number of issues, replace judges through parliament-approved appointments and get their decisions completely overturned by a simple one vote majority in the country’s parliament, the Knesset, now controlled by parties and groups once deemed fringe extremists.
The Supreme Court has for some time acted as a guarantor for judicial review and the protection of civil liberties, particularly because the country has one legislative chamber. The country doesn’t have a formal constitution either but instead has a set of 13 basic laws that the Supreme Court uses as a de facto constitution.
IBA President, Arpón de Mendívil, says, ‘Israel has been recognised as a substantial upholder of the Rule of Law with a senior judiciary which is much admired globally. These changes will wholly undermine that proud position.’
In February, the bill overcame the first hurdle of an initial vote – one of three required readings in parliament – and immediately prompted mass street protests, which gathered numbers previously unseen in Israel. The demonstrations have continued ever since, almost on a weekly basis. Rights groups monitoring the situation say Israeli police responded at times with excessive force that has in the past been reserved for the Palestinians and made dozens of arbitrary arrests. Labour unions have called brief strikes but are threatening major nationwide action. The country’s traditionally cohesive military has shown signs of strain too with more than 1,000 air force reservists, including drone operators and pilots, saying they would boycott military service if the bill advances. The Israeli press reported that officers and soldiers in the elite Military Intelligence’s Special Operations Division and cyber warfare units began a boycott in protest.
The opposition has been so strong that observers initially anticipated that the government would sit down and seek a compromise, especially after appeals for cooler heads from the country’s most influential international ally, the United States, and from Israel’s figurehead President Isaac Herzog, the first president to be born in the country. But instead, in July, the right-wing government pushed ahead with the first amendment to a basic law that defines the role of the judiciary. The amendment effectively strips the Supreme Court of its authority to veto government decisions deemed ‘extremely unreasonable’, a benchmark phrase used in rare cases to overturn government decisions seen as unsound or even corrupt. Supreme Court rulings can typically cover anything from issues such as whether Israelis can play football on the Sabbath to whether the government can confiscate land or expand illegal settlements in the occupied Palestinian territories.
Opponents brought challenges to the bill before the Supreme Court, creating a situation whereby in September the Supreme Court began hearing arguments about its own fate. Such is the importance of the case that all 15 judges of the Court were reviewing the challenges. Typical behind-closed-doors discussions were broadcast live on Israeli TV channels and online.
The ‘enemy’ within
But, as the Court looks into the case, those for and against the plan are entrenching their positions and hardening their language in a way that has exposed a schism in Israeli society as never before. Tough and derogatory language has been levelled against the judiciary, especially in far-right circles.
Justice Minister Yariv Levin says that faith in Israeli judges has plummeted to a historic low. Itamar Ben-Gvir, leader of Israel’s ultra-nationalist Otzma Yehudit party, says that a Supreme Court ruling that axes his coalition’s bill would be ‘an attempted coup’. Ben-Gvir is also Netanyahu’s Minister of National Security and as such oversees the police force.
Caroline Glick, Senior Contributing Editor at Jewish News Syndicate and a Newsweek columnist, describes Supreme Court justices as ‘radicals’. People on the left resisting PM Netanyahu are ‘insurrectionists’ who get foreign funding and who are ‘willing to harm the country to advance their quest for power’, she says.
Israeli Haaretz journalist Amir Tibon explains that such hostility in the language of the far-right is because they literally now view the Court as ‘an enemy’.
Companies are dependent on the legal stability in any given country to provide them with the assurance that they are going to be able to operate and invest
Co-Chair, IBA Rule of Law Forum
Those proponents insist they have legitimate grounds for pushing the law. The far-right Religious Zionist party leader Bezalel Smotrich, who is also the Minister of Finance for Israel, and Simcha Rothman, Religious Zionist party member and right-wing activist, were the first to introduce the bill. They argue that the law, contrary to public fears, will fix an already biased centre-left justice system that has for too long victimised religious and nationalist groups. Those groups complain that under their control, the Knesset has no power to impeach justices. The Supreme Court both self-selects and ousts justices and has the controlling vote and veto on a nine-person ‘judicial selection committee’ for new judges. The committee is made up of four legislators and members of the government, along with three Supreme Court judges and two lawyers from the bar association.
By pushing the overhaul, they argue they are finally placing much-needed limits on such sweeping court authority and are in fact creating a more robust representation of the make-up of Israeli voters, rather than unaccountable independent ‘liberal’ justices.
Rights groups say the list of specific goals for the Israeli far-right behind the judicial overhaul is long but includes exempting ultra-Orthodox children from the military for their religious studies, protecting their politicians from an intrusive judicial process if needed and allowing a heavier hand in dealing with the Palestinians and potentially the future annexation of the occupied West Bank.
From the frying pan and into the fire
Rights groups find fault in the bill on other grounds too. According to Amnesty International, it will have ‘alarming implications’ for ‘marginalized groups in Israel’, including African asylum-seekers. Both Israeli and international rights groups insist that the attack on the Supreme Court is just a prelude to those more extreme right-wing policies. They predict that if the law is enacted, the Palestinians would be particularly vulnerable.
Amnesty International says in a report published in September that, ‘appalling as the current situation is, the planned overhaul would be likely to make things even worse’.
‘Instances of Israel’s Supreme Court intervening to protect the human rights of Palestinians have been few and far between, and the protections provided have tended to be partial. But if Israel’s judiciary loses its power to challenge the government, it is likely that even this slim and inconsistent margin of protection would evaporate’, Amnesty International says.
Both Israeli and international rights groups point to how the Supreme Court approved the military’s use of live fire against protesters in Gaza in 2018 and has not rejected a request by Israel to hold Palestinians without trial or charge. In May last year, The Guardian reported that the Supreme Court adopted one of the biggest expulsion decisions ever against the Palestinians by forcing out more than 1,000 Palestinians from the Masafer Yatta area of the West Bank after a two-decade-long legal battle. Measures such as confiscating privately-held Palestinian land were also often tolerated by the Court. ‘These measures were legitimized by the Supreme Court of Israel, which ultimately rendered the question of the legality of the settlements non-justiciable’, says Amnesty International.
By law, the Israel Security Agency (known as Shabak, or the Shin Bet) has the authority to decide whether to return bodies of Palestinians killed by Israeli forces or not. It currently holds the bodies of at least 115 Palestinians, including 15 children, in morgues to be used as bargaining chips. To get the body of 17-year-old Wadea Abu Ramuz returned, his family and lawyers resorted to the Supreme Court, which upheld their request on 4 May, but didn’t give a specific date for the body’s return.
Despite such rulings, the far-right still accuses the Court of tying the hands of the Israeli military and security forces. In February, an op-ed in the Jerusalem Post explained why the bill was crucial for security. ‘The Court blocked the [Israel Defence Forces] from razing buildings used by terrorists to attack Israelis passing on the nearby road, even though the army planned to pay compensation to the absentee building owners’, wrote the two authors, Morton A Klein and Elizabeth Berney of the Zionist Organization of America. They blamed a group of ‘George Soros-funded anti-Israel [non-governmental organisations]’ that brought a flood of ‘lawfare’ cases before the Supreme Court to harass the Israeli government and the military when dealing with the Palestinians.
Holding the line
Equally fervent on the other side of the widening divide are Israelis who fear undermining the Supreme Court would destroy a major majority rule check in the nation, whose system relies on only one house of parliament. Yair Lapid, former Prime Minister and current Leader of the Opposition, says the bill is ‘a unilateral coup in Israel’.
Leaders of the movement resisting the bill slam the law as a life raft for Prime Minister Netanyahu, who has campaigned on judicial reform ever since he was indicted in 2019 on breach of trust charges. He denies any wrongdoing, but activists warn that a reimagined judicial system reliant on his right-wing coalition for survival are likely to try his case, and that of other corrupt politicians, more sympathetically than a more neutral system.
‘We will also fight against the intentions to legislate a retroactive immunity law for the Prime Minister, to cancel the offense of “Breach of Trust” – a move that will cause an uncontrollable epidemic of corruption for many years to come – and against all the attempts to hurt the Rule of the Law, the judicial system and democracy’, says a statement from the Movement for Quality Government in Israel, one of the activist groups organising the protests and petitioning the Supreme Court against the bill.
Another complaint against the judicial overhaul is that irreparable damage to the country’s justice system and civil rights legislation would dampen Israel’s vibrant business environment – in particular the tech sector, which is widely seen as the engine of the current economy.
In a letter earlier this year, a group of Israeli economists warned that sidelining judges would scare off investors. In July, credit agency Moody’s said in a statement that institutions in Israel ‘have become less predictable and more willing to create significant risks to economic and social stability’. Moody’s noted in its statement that 80 per cent of new Israeli start-ups have already decided to register overseas this year when only 20 per cent did so in 2022. Enraged entrepreneurs and investors, who are among the main drivers of the mass protests, say they need reliable legal recourse if they ever encounter subjective and unreasonable decisions by officials and civil servants – a principle backed by legal experts in many countries.
‘In many cases, companies that could do very profitable business in particular countries choose not to do so because of the uncertainty which is engendered by the lack of rule of law and because the way in which the country and government operate flies in the face of the companies’ wider values and wishes for society’, says Denyer of the IBA Rule of Law Forum. ‘Companies are dependent on the legal stability in any given country to provide them with the assurance that they are going to be able to operate their business and invest and do all of the activities they do in a predictable way, which is not subject to short term political change’ but is ‘in a way that enables them to serve their customers consistently.’
The crisis might occur only once the court employs this ruling to invalidate a concrete decision based on its ‘unreasonableness’, which may take some time
Professor of Law, The Hebrew University of Jerusalem
This has already proven true in Israel. After the news broke about the new bill in January, The Wall Street Journal reported that some tech companies have started shipping money overseas and counted at least nine of Israel’s tech companies that were already moving cash holdings outside the country. The US then warned that a reordered legal system would hurt the nation. Thomas Nides, former US Ambassador to Israel, likened the legal plan to setting one’s own backyard on fire, only to be later told by members of the Israeli government not to intervene in domestic politics.
‘Legislating these changes is expected to make Israel less attractive to investors, as it is less committed to democratic principles’, Barak Medina, Professor of Law at the Hebrew University of Jerusalem, tells Global Insight. Medina suggests however that the whole discussion in Israel is rather theoretical, since the Supreme Court will eventually override the bill. He explains that the legislation, if ever enacted, would indeed shift power to the executive branch and result in appointing justices on a political basis, counter to the current tradition. ‘The change in the law regarding judicial appointments would definitely harm judicial independence. The open question is what policies the government would pursue if it were free of constitutional limitations’, says Medina.
But the showdown has already caused damage to how the legal system is viewed among Israel’s increasingly influential nationalist and religious segments – something that the country may never recover from. Rule of law advocates say judges would normally need to be held in public esteem to function impartially – one component of a healthy judicial system – rather than be subjected to repeated slurs and accusations of bias.
‘Judges need to be respected. They need to have credibility within the legal profession but also with society and all elements of the country and its manifestations. All actors need to have confidence the laws can be applied fairly by those judges,’ says Denyer. ‘Those basic building blocks also require the judiciary to be supported by the political process free from political interference and for the judiciary to be able to do work in an open and transparent way.’
‘The IBA expresses its serious concerns over the impact that the reforms could have on the constitutional framework of the State of Israel,’ says Arpón de Mendívil in urging Israel to reaffirm its clear commitment to the rule of law by abandoning the proposed reforms. ‘If passed, similar legislation would place Israel outside the boundaries of modern democracies, with serious consequences for its citizens and its relationship with the international community.’
Netanyahu has so far obfuscated as to whether he would honour the expected decision by the Court to invalidate his bill. Members of his far-right coalition, who have shown little appreciation for the judges and who have traditionally made a career out of defying public sentiment, may eventually ignore it altogether, leading to a constitutional crisis. This scenario of who has more authority may force security forces into a puzzling choice of who to follow – the Court or parliament.
Medina doubts that the situation would deteriorate into such a confrontation. ‘The current case deals with an “abstract” review of the amendment, and thus the government cannot practically avoid obeying it. The court would simply say that despite the amendment, it does have the power to review governmental decisions’, he says. ‘The crisis might occur only once the court employs this ruling to invalidate a concrete decision based on its “unreasonableness”, which may take some time.’
As for the possibility of a constitutional crisis, Medina expects the government to back down and follow the law based on previous precedents. ‘In the case of constitutional crises, the administration will undoubtedly obey the court’, he says. ‘The principle of the rule of law is an entrenched one in Israeli society, even without a formal constitution.’
Emad Mekay is a legal and current affairs journalist and can be contacted at [email protected]