From our special correspondent in Israel – Three months after the start of the war between Israel and Hamas, Israel's Supreme Court this week dealt two major blows to Benjamin Netanyahu and his ruling coalition. The court scrapped a key part of the government's polarizing justice reform plan and postponed implementation of a law protecting the prime minister from mandatory rejections. FRANCE 24 spoke to Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, on the impact of these decisions.
Issued on: July 1, 2024 – 9:43 a.m
5 minutes
Israeli Prime Minister Binyamin Netanyahu suffered a major setback on Monday when the country's top court voted by a narrow majority (8 to 7) to repeal a law passed in July that stripped judges of the right to veto government and parliamentary decisions they for considered “unreasonable”.
The law was a central part of the government's controversial plan to reform the country's justice system, which sparked massive protests across the country.
On Wednesday, the Israeli prime minister suffered another legal defeat when justices decided (6 to 5) to delay enforcement of a controversial law that would protect Netanyahu from leaving office if asked to do so by the attorney general or the Supreme Court .
The exclusion law, passed in March, will now only come into force at the beginning of the next legislative period of the Israeli Parliament after the next general election.
The Israeli Supreme Court rulings come as Netanyahu's popularity in opinion polls is falling and criticism of Israel's offensive on Gaza is increasing.
According to a recent poll, Netanyahu's Likud party would win only half of the seats it currently holds (16 versus 32) if elections were held now.
To better understand the impact of the Supreme Court's decisions, FRANCE 24 spoke to Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute.
Dr. Amir Fuchs, senior researcher at the Israel Democracy Institute, in Kfar Sava, Israel, on January 4, 2024. © Assiya Hamza, FRANCE 24
France 24: What consequences would this reform have had if it had not been overturned by the Supreme Court?
Fuchs: The government reform was aimed at reducing the power of the judiciary. Israel has no formal constitution. But we have these basic laws, which essentially represent a constitution. If a law violates the constitution, the Supreme Court can declare that it is unconstitutional and therefore overturn it. This has happened almost 20 times in the 30 years since the Supreme Court changed Israel's system of government in 1995.
In Israel there is no checks and balances like in other countries' systems. For example, we have no real separation of powers between the executive and legislative branches. The government governs through a majority coalition in parliament. If you win a simple majority of 61 seats, you can do whatever you want. The only counterweight we have is a strong and independent Supreme Court. And what the Netanyahu government wanted to do was change that.
The government also wanted to change the nomination of judges. So they could easily appoint the judges they wanted.
The attorney general directs the state's criminal justice system. Netanyahu is currently facing charges of fraud and corruption. If the law had passed, Netanyahu could simply fire his prosecutor and choose another one who would be more convenient for him.
The Supreme Court also postponed the exclusion law intended to protect Netanyahu, saying it was “clearly personal” in nature. What does that mean?
Fuchs: For decades we had a very vague law that said if the prime minister is incapacitated, someone will replace him. But it was not explained what the reasons for this inability might be. For medical reasons or other reasons? Nothing was written about this – or about the procedures to follow.
Therefore, Netanyahu's government decided to change the law on incapacity to hold office – meaning that the prime minister will only be removed if the prime minister himself says he is incapacitated or if three-quarters of the government says so.
The government then needs a two-thirds majority in the Knesset. They put measures in place to ensure this would never happen. After they voted in favor, Netanyahu announced to everyone that his hands were no longer tied. However, the court said the law was “clearly personal in nature” and postponed its enforcement until the next Knesset. The law will therefore only be implemented in the next elections.
Can Netanyahu be indicted?
Fuchs: If there is a majority of 61 MPs, they can simply hold a vote of no confidence and form a new government.
But what can happen – and what always happens in Israel when a government loses political support – is that it simply announces new elections. And that requires 61 members of the Knesset who support a new election. And the entire opposition will agree to this. We have seen in surveys that many people who voted for the coalition are now completely against it. I don't know when the war will end. But if the war ends tomorrow, they will probably announce an election.
Will Netanyahu be held responsible for the October 7 attacks?
If there is a change of government, there will be a committee of inquiry which will be very independent as it will be appointed by the Supreme Court and not by the government. This usually happens after major failures like what happened in 73 and 82, when Christian militias, backed by the Israeli army, massacred up to 2,000 Palestinians in the Lebanese refugee camps of Sabra and Shatila.
The committee will ask Netanyahu tough questions and make a verdict. And they will say that he is to blame. He was negligent. He cannot be re-elected. For example, when they said that former Prime Minister Ariel Sharon, who also served as defense minister during the Sabra and Shatila massacres, could no longer be defense minister, he was removed from office.
Will Netanyahu be able to remain in power if he is convicted in his various trials?
If he is legally convicted after the appeal, he must resign according to the basic laws. It will take time – at least another year.
Maybe after the war, when Netanyahu sees everything falling apart, he will get some kind of deal where he won't go to prison and won't even be convicted of anything serious in exchange for resigning and not participating in the election.
Once Netanyahu understands that he cannot be re-elected, he may agree to the deal. And I'm pretty sure the Attorney General will seek such a deal so he/she doesn't have to deal with the lawsuit.
This is also an optimistic scenario. I'm not sure if that will happen. Many people were sure this would happen years ago when he was indicted on corruption charges in 2019. But he decided to fight and repeatedly took part in elections. He never gave up, but maybe he has some good advisors who say: “This is the time to resign, you are not popular enough, you will not be elected. So at least use this negotiating tool to close all criminal records on you.
This article was translated from the original into French.
This interview has been edited for clarity and length.