Item Informationcaption,
During a protest against the judicial reform in Tel Aviv, there are clashes between demonstrators and police
Israel recorded the eighth consecutive weekend of popular protests last Saturday (February 25), and new demonstrations are planned for the next few days.
With around 160,000 spectators, last Sunday’s event was considered one of the largest in the country’s history. The demonstrators are calling for the abandonment of a judicial reform that was proposed by the government of Prime Minister Benjamin Netanyahu and part of which was approved by parliament (Knesset) in a first phase last Tuesday (February 21).
To go into effect, each of the proposed laws in the package must pass three votes. But the mere possibility of the changes coming to fruition has had a major impact on Israeli society and the international community.
Analysts warn that the reform could seriously undermine the separation of powers and ultimately undermine Israel’s democracy.
“Passing the amendments would mean the end of Israeli democracy. And that’s because a democracy relies on the separation of powers, the rule of law and respect for human rights,” says Gila Stopler, Dean of the Faculty of Israel Israel Law and Business and a specialist in constitutional law.
The lawyer and researcher at the Institute for Democracy in Israel, Amir Fuchs, also sees major risks.
“These changes would mean absolute power for the majority, which controls the government. In my view, this is not a full democracy following the system of checks and balances,” he says.
For Gideon Rahat, political scientist and professor at the Hebrew University of Jerusalem, the country’s democracy could be damaged even if only parts of the reform package were passed.
“Israel is a democracy, although it has many problems related to the connection between religion and state and the constant occupation of areas that are not part of the country,” he says.
In the 2022 Global Democracy Index, Israel ranks 29th out of 165 countries analyzed. Even before the reforms were announced, the nation had dropped six positions from 2021 to date.
Understand below what the proposed changes are, how they may affect Israeli politics and society, and the specific interests behind their approval.
What does the reform propose?
The package is extensive and includes many bills that would act as some sort of constitutional amendment. Israel does not have a formal, written federal constitution, instead using socalled basic laws to define the role of major institutions and the relationships between state agencies. And the reforms were presented to the legislature as basic laws.
According to Gila Stopler, the proposals can be broken down into four main points. The first concerns a project that would provide, in a simplified way, for the country’s Supreme Court to be prevented from reviewing laws approved by Parliament.
The measure is considered controversial precisely because there is not a very clear distinction between the Basic Laws and the Common Laws laid down by the legislature. In other words, the Knesset can change basic laws just as easily as it can approve new bills.
And if the reform is approved, it would do so without judicial review by the Supreme Court.
“The government could pass any law and protect it from judicial review simply by classifying it as a constitution,” Stopler says.
The reform also includes a proposal to allow Parliament to overrule Supreme Court decisions by a simple majority, ie 61 votes out of a total of 120 MPs.
Professor Gideon Rahat of the Hebrew University of Jerusalem explains that the weak division between the legislative and executive branches makes the Supreme Court one of the few institutions with the power to review government actions and laws passed by the Knesset.
“We don’t have a lot of checks and balances in Israel,” he says, referring to the system by which the three powers must regulate themselves in favor of more security for the citizens.
“Unlike Brazil, for example, which is a federal state and has a chamber and a senate, we are a unitary state and have only one legislative chamber. We also follow a parliamentary system and therefore the parliament and the executive are very close to each other”.
“In other words, the main culprit for checks and balances is the judicial system,” says Rahat.
caption,
Protest against Benjamin Netanyahu’s government in January
The third item sees changes in the committee responsible for appointing all judges in the country, including members of the Supreme Court, known as the Judicial Selection Committee (JSC).
This board consists of nine members, four of whom are associated with the executive and the legislature. The reform plans to increase this sum to give government officials a permanent majority who will then be able to control appointments.
Amir Fuchs claims not only that appointments will be made entirely political and the balance of power in the country will end, but that with the change, a single government could be responsible for appointing all Supreme Court justices, depending on their length.
The country has a long history of prime ministers who have held office for many years. Benjamin Netanyahu, for example, became the longestserving prime minister in Israel’s history in 2019. He has led the country for more than 15 years, all his tenures combined.
“In Israel, Supreme Court justices only serve until the age of 70, so we have constant changes in the court. For example, if a government stays in power for eight years, it could guarantee the support of the entire court,” says Fuchs.
The fourth point concerns the appointment of legal advisers belonging to the various ministries.
These bodies were created to ensure the public interest and the legal opinions they provide are binding on the government.
The current proposal seeks to transform the role of the adviser into a trust chosen by ministers themselves, end the obligation to follow advice and give the state access to private legal advice and representation in court.
What would the impact be?
The main impact is the end of the balance of power, according to experts consulted by BBC News Brasil.
“The only truly independent power in Israel right now is the judiciary, and if this plan were implemented, that independence would end and Israel would essentially become an autocracy, with the government controlling the Supreme Court without oversight,” says Gila Stopler .
Supporters of the reform argue that since the bloc of religious and farright parties won a majority of seats in the Knesset in the November 2022 election, the changes in the judicial system reflect what the majority of Israelis want and should be respected.
However, details of the plan were not disclosed by Netanyahu or his party ahead of the election.
In addition, opinion polls show that 60% of Israelis want the government to abandon the idea or halt progress on legislative projects until they negotiate with the opposition. And the protests themselves show that many are dissatisfied.
Amir Fuchs also notes that this discourse, which preaches the will of the majority over the minorities, is characteristic of populist leaders and in many cases leads to authoritarianism.
“They claim to be the majority and try to do what the people want that’s populism, and it’s not unique to Israel,” he says.
“But once changes to the system come into effect, they use this full power not only to implement policies that violate human and LGBT rights, but also to change electoral laws and control the courts as has happened in Hungary and happened to Poland.”
caption,
Supreme Court President Esther Hayut and other justices in audience at the court’s headquarters in Jerusalem
There are also economic consequences. Professor Gideon Rahat explains that the strength of Israel’s economy is closely linked to its political stability and the reforms have provoked negative market reactions.
Evidence of this is that the Israeli shekel hit its lowest level in three years the day after Parliament first approved it.
“The Israeli economy is strong thanks to the Supreme Court and the people’s confidence in its ability to ensure justice and the right to property,” says the professor at the Hebrew University of Jerusalem.
The same concerns have also been raised by hundreds of economists and by the head of the Bank of Israel himself.
There can also be practical consequences of changes in the way the Knesset and the judiciary deal with new laws and draft laws.
Farright parties have repeatedly been blocked in their efforts to expand settlements in the Palestinian territories and with reforms they could be given more freedom to pursue their goals.
Likewise, ultrareligious legends have been duelling the courts for years to exempt ultraOrthodox Jews from conscription. These parties are now part of the coalition supporting Netanyahu’s government and could benefit from greater control over the judiciary.
What does Benjamin Netanyahu have to gain?
Bibi, as the prime minister is known, is on trial in Jerusalem for bribery, fraud and breach of trust. And according to the experts consulted, you could benefit from the reforms in different ways.
First, because his government could eventually replace the three judges currently ruling his case, promote them to other positions and appoint allies.
Second, because it is very likely that Netanyahu’s case will reach the Supreme Court through appeals and with the proposed changes, the prime minister’s government would have the power to appoint the next members of the court.
Finally, experts also claim that Bibi could use the threat of retirement as leverage to negotiate a settlement and settle the lawsuits against him.
“Around 12 years ago, reforms similar to these were proposed by some of those who promote them today. But then they didn’t gain strength and the biggest opponent was Benjamin Netanyahu, who spoke about the importance of the independence of the Supreme Court and that he would never allow anything like that,” says Amir Fuchs from the Institute for Democracy of Israel.
“Now he’s changed his mind just as he became a defendant.”
What are the chances that the reform will go through?
The government’s coalition parties are committed and united in the task of approving the reform, said Fuchs. And because they have a comfortable majority of seats in Parliament, they have enough votes to pass legislation.
On the other hand, popular resistance and economic impact could weigh on the future, the expert said.
“Hundreds of thousands of people on the streets are changing the landscape. The government also sees that their actions can have financial consequences,” he says.
For the expert, there is still the possibility that the Supreme Court could step in and declare the laws unconstitutional if they were approved. “This has never happened in Israel, but it could trigger a constitutional crisis,” he says.
But the truth is that, like everything related to Israeli politics, it is difficult to predict.
There is still no official date for the next plenary vote in parliament, but the government expects at least part of the package to have all votes through by the end of March, before the Knesset goes on hiatus for the Jewish Passover.