Ken Stein, March 22, March 5, and February 11, 2023
Once Benjamin Netanyahu, was sworn in as Prime Minister to lead Israel’s 37th government in late December 2022, his cabinet focused immediately on presenting several laws that would allow several ministers, (Netanyahu – not to be removed from office and Arie Deri -to be seated as a minister) to assure their continued participation in the government. Both of them had run afoul of the law in the last several years. Broader, Netanyahu’s Likud lead coalition immediately offered a major overhaul of Israel’s judicial appointments process with the objective of giving the parliament, or Knesset an over-riding influence in determining how judges would be selected in the future.
The clear objective of the overhaul was to diminish the power of judges and the Israeli court system, thereby giving to the governing coalition more power to determine future laws, and thus virtually eliminating the power of the courts, and particularly the Supreme Court to overturn laws that might otherwise be viewed as contrary to the coalition’s political preferences. The objective of the overhaul was to politicize the courts; the legislation was aimed at removing the courts as a check on the legislative agenda of the Knesset. An overhaul of this nature would eliminate the ability of the Supreme Court for example to state that a Knesset law was ‘unconstitutional.’ While Israel lacks a formal constitution, it has basic laws which the court has through precedent held to be the standard for rights and civil liberties in Israel.
Once the proposed laws were put before the Knesset in January 2023, the Israeli public spilled into the streets in civil protest, riled over the prospect of the Knesset making itself into an autocratic body. The protests were virtually continuous for at least 10 consecutive weeks. Opposition to the proposed legislation emerged from foreign investors, Israeli military officials and reservists, the Israeli media, friends of Israel abroad such as Germany, France, the United States executive, and US legislative officials, among others. A ten minute segment by the former head of the Bank of Hungry president, Andras Simor is particularly analogous to the potential economic consequences that could befall Israel (please see the 58:00 mark of the video on the Economic Impact of possible Judiciary Reform, March 2, 2023, Conference video,
Israeli President Isaac Herzog made two significant speeches to the nation, (February 12, 2023) and March 9, 2023 where he appealed to the governing coalition to compromise in its plans to overhaul the judicial selection processes and particularly, to slow-down in its haste to change in essence of Israel’s democratic institutional system of “checks and balances.” After Herzog’s second appeal, Prime Minister Netanyahu rejected the Israeli president’s call for compromise, but several of the proposals considered in the judicial overhaul package were slowed down or emended in the week of March 21.
The four elements of The Planned Overhaul of Israel’s Judiciary by the Netanyahu government in January-February 2023 were noted by Israel’s Democracy Institute (IDI) as
- An ‘override clause’ designed to curtail judicial review of legislation.
- Changes to the makeup of the Judicial Selection Committee designed to ensure the government controls appointments to the bench.
- Cancellation of the ‘standard of extreme unreasonableness’ utilized by the Supreme Court to intervene in executive orders.
- The transformation of ministerial legal advisors into political appointees.
In early 2023, The Israel Democracy Institute undertook an extensive review of each of these four proposes elements. This is as qualitative an assessment as one will find.
Israeli President Herzog’s Appeal to Compromise on Reform of the Judicial system was made February 12, 2023. (unofficial translation from the Hebrew)
Israeli President Herzog’s Appeal to the Nation for Compromise on the proposed judicial overhaul, March 9, 2023. (unofficial translation from the Hebrew)
Several short videos explain the issues under debate and on the potential impact of the changes upon Israel politically and economically. Three videos, together no more than 6 minutes are provided by the Israel Democracy Institute – What are the issues at hand? How does Israel choose judges? And the Development of Israel’s “Constitutionalism.” Scroll down from the top to view the individual videos
The most impressive long video of impact on the Israeli economy is found at Economic Impact of possible Judiciary Reform, March 2, 2023, Conference video, 1:48, where economic experts from around the world indicate the negative repercussions of the suggested changes; the most impressive presentation is the impressive comparison of Hungary to what might occur to Israel. The presentation was given by Andras Simor the former head of the Bank of Hungry. His remarks are at the 58:00 mark of the video, and it lasted for ten minutes. The presentations at the conference were relevant and insightful.
INSS International Conference 2023- Security, Social, and Democratic Dimensions- The Reform of the Judicial System, March 1, 2023 (29:34 video) four participants, Dr. Idit Shafran Gittleman, Col (Res) Pnina Sharvit Baruch, Prof. YIfta Bitton, Prof Mohammed S. Wattad
The four elements were illuminated in detail in David Makovsky’s in-depth interview (71 minutes) with Yedidia Stern, former Head of the Bar-Ilan Law School and now president of the Jewish People’s Policy Institute, and Elaykim Rubinstein, Former Israeli Supreme Court Justice with three decades of additional service in the Israeli Ministry of Foreign Affairs, Judiciary, and Prime Minister’s Office. The Interview may be found in Decision Points, Season Four, February 9, 2023 This is a superb overview of the judicial reforms proposed by Netanyahu government. To learn what Israelis thought about the proposed overhaul please read, Tamar Hermann and Dr. Or Anabi, “Overhauling the Judicial System – What Do Israelis Think,” Israel Democracy Institute, February 3, 2023.
Professor Stern’s January 15, 2023, written assessment of the proposed changes is found in “No to (Justice Minister) Levin’s revolution, yes to changes in the legal system.”
Opposition to the judicial overhaul Bill before it was presented to the parliament is provided by Israeli Attorney General, Gali Baharav-Miar, February 2, 2023
Eighteen Retired Supreme Court Judges stated their opposition to the proposed Judicial Changes on February 11, 2023.
The proposal to change the prerogatives of the Supreme Court have been in Israel’s public domain for years. In September 2019, Yohanan Plessner wrote an informative analysis of the issue “The Knesset and the Court: Is This Israel’s Override Election,” Israel Democracy Institute. Israel’s Institute for National Security Affairs undertook a podcast with Pnina Baruch on February 5, 2023, about the Implications on Israel’s National Security of the Proposed Legislative Reform. The podcast focused on the meaning of ‘liberal democracy’ in an Israeli context. (22:00)
For a broad understanding of Israel’s political system, its branches of government, their respective powers, and relationships to one another, see The Structure of the Israel government. An official Israeli government review of the judicial powers vested in the Israeli courts, is explained.
Several excellent opinion pieces were offered about the proposed judicial overhaul and its impact on Israel and its relations abroad
Matti Friedman, Yossi Klein Halevi, and Daniel Gordis, “An open letter to Israel’s friends in North America,” Times of Israel, February 2, 2023.
Yaacov Katz, “Israeli judicial reform nuance: Both sides have legitimate concerns – opinion,” Jerusalem Post, February 16, 2023.
Anat Thon Ashkenazy, “The Ramifications of the Judicial Reform for the Status of Women in Israel,” Israel Democracy Institute, March 5, 2023.
A dozen Jewish US congresspeople send letter to Israeli political leaders expressing profound concern about how the proposed judicial overhaul could undermine Israeli democracy, March 9, 2023.
Oden Ron and Muhammad Khalaily, “The Judicial Revolution and Arab Society in Israeli,” Israel Democracy Institute, March 12, 2023.
INSS, “A Strategic Alert in the Wake of the Judicial Reform,” March 21, 2023, Tel Aviv Israel.
For deeper background on Israel’s democratic origins consider, Shlomo Avineri, “Democracy in Israel: Past, Present and Future,” Y&S Nazarian Center for Israel Studies at UCLA, Video, (1:24). This is a superb historical overview by Israel’s most notable political science scholar. With his permission, CIE republished Avineri’s “Democracy in Israel: Past Present and Future,” January 2021,
See also, Samuel Sandler, “From Tribal to Territorial Democracy: How can Israel emerge from its political abyss,” Jewish Political Studies Review, July 25, 2021 and Ken Stein’s, “Origins of Israeli Democracy: Jewish Political Culture and Pre-State Practice,” Center for Israel Education, February 6, 2023.
In addition in Jewish Political Studies Review, there is Alan Dowty’s, Jewish Political Traditions and Contemporary Israeli Politics,”1990; Daniel Elazar’s “Communal Democracy and Liberal Democracy in the Jewish Political Tradition,” 1993, and Elazar’s The Jews’ Rediscovery of the Political and its Implications, 1996.
Ken Stein, March 23, March 5, and February 11, 2023