Ken Stein, May 1, April 4, March 22, March 5, February 11, 2023
Four months after 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 remove political power from the Supreme Court to engage in judicial review of Knesset legislation and place in the hands of a coalition government virtual and real authoritative powers. The Israeli public acted with unprecedented and continuous public displays of opposition to the proposed actions by 64 person Netanyahu led coalition.
In looking back over Israel’s 75 years of history, these four months were the most voluble in Israeli society as key questions about the future nature of the state were being debated, and at least in the first four months, clarity of how those debates would end remained uncertain. Those for and against the judicial overhaul debated a myriad of issues impacting Israeli society during and after Israel’s 75th anniversary celebration.
The first concrete steps by the coalition were to secure the objective of not having several ministers, (Netanyahu and Arie Deri) removed from their positions by judicial decisions. On March 22, 2023, the Knesset passed into law a bill that would protect Netanyahu from a court order to recuse himself. The legislation explicitly blocks the top court from ordering a prime minister to take a leave of absence and is widely seen as a reaction to fears that the High Court could force Netanyahu to step down, due to the potential conflict of interest created by him overseeing his coalition’s bid to overhaul the judiciary while he is himself on trial for multiple corruption charges.” From the early days of the public protest, significant numbers of Israeli military reservists told their commanders that they would not appear for reserve duty if the judicial overhaul suggestions were being seriously considered.
Each week into May 2023, hundreds of thousands of Israeli civil society activists demonstrated against the coalition’s attempts to concentrate power in the parliament. The single largest pro-coalition demonstration took place on April 27 with leading coalition voices, Yariv Levin, Simcha Rothman, and Itamar Ben-Gvir addressed their supporters encouraging support for the judicial overhaul. At the four month mark, Israelis of all persuasions were invoking Israel’s Declaration of Independence as a foundational document for the promotion of their views. An explanation of the Declaration is provided by Neil Robachevsky and Dov Zigler “The Political Philosophy of Israel’s Declaration of Independence,” Mosaic, March 31, 2023.
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 a coalition’s political preferences. The objective of the overhaul was to politicize the courts and removed from the courts the ability to check 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.
The ruling coalition and those that opposed the proposed changes of how the judiciary would function or how judges would be chosen were reacting to underling social and political issues that were in debate and in controversy for decades in Israeli society. Those who reacted to the proposed imposition of regulations and rules that would put additional power in the hands of one segment of Israel society was greatly feared because long inconclusive issues might find outcomes that a portion of Israel might find intolerable. Likewise, the ruling coalition felt it was their prerogative to assert their Knesset majority and finalize outcomes on matters that they felt needed finalization. These matters had to do with religion and state, minority rights, the nature of Israel as a Jewish state, religious practice, government service, and a whole host of other issues. .
Issues that surfaced debate about formal exemption from army service by those who are engaged in religious study and what stipends might those students might be receiving exemption for not participating in public service; two ultra-Orthodox parties threw their support behind the judicial overhaul so that the supreme court would not override a law stating such; how would asylum seekers be protected, what protections could be assured for minority citizens in the state, if there were to additional rules and laws passed that imposed religious regulations. Yair Levin, the Ministry of Justice who was leading the Knesset coalition for the judicial overhaul said on April 27, “The time has come for a High Court not to give rights to the families of terrorists, and does not permit fake memorial services together with terror supporters; it needs a court that“ punishes rapists and doesn’t seek ways to protect them,” a court that protects IDF soldiers and not the terrorists’ neighbors.” Prime Minister Netanyahu said on March 23, reiterating Levin assertion that the Supreme Court, “unjustifiably intervened with security considerations in the fight against terror. It raised difficulties, time after time, regarding government policy. He continued, asserting that the court was checking the government’s prerogatives. He said, “It intervened in the [terms of Israel’s] gas [extraction] deal and for years it delayed the extraction of gas from water, at an economic cost of tens of billions of shekels, which affected every citizen in Israel. Without authority, the court struck down laws, prevented appointments, and intervened in many areas that it did have the right to do so.” A fear held by those opposing the judicial changes focused on the intention of those supportive of the religious courts to assume prerogatives of the municipal, secular, and supreme court.
Four months into the social protest, two key questions remained: how long the social protests would last and what would be their ultimate outcomes look like in an Israeli polity that had passed its 75th anniversary celebration? No one person had emerged as the public leader against the coalition government, though public opinion polls indicated that by mid-April, the Likud coalition parties if elections were held in spring 2023, their right of center coalition would lose its Knesset majority.
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. 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, It seemed as long as the Netanyahu coalition was proceeding forward with the prospects of change in the judiciary, President Biden had no plans of inviting the newly elected prime minister to visit Washington as is the custom of all newly sworn Israeli Prime Ministers. So contentious was the public mood in Israel, that Netanyahu cancelled a presentation to the 3,000 delegates to the General Assembly of the Jewish Federations of North America.
As Israel approached its April 26 (Hebrew calendar) and May 14 (Gregorian calendar) 75th anniversary, the Israeli general public singularly (re) embraced the Declaration of Independence as its guiding foundational document
In an effort to diffuse the rising public tension between opposing views, 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.
During his second speech in mid-March 2023, President Herzog presented a detailed constitutional framework for establishing a consensus between those in favor and opposed to the overhaul. Israelis continued to pour into the streets week after week, with prominent opposition to the overhaul emerging from military reserve units, which caused Defense Minister Gallant to privately and then publicly request on March 25 that Prime Minister Netanyahu place a pause on the legislative package. In response, Netanyahu fired Gallant, and then called for a legislative pause in his second speech to the nation (March 23 and March 27). By the end of March, Herzog had convened at his residence a group of individuals with to review possibilities of some compromise. The Passover holiday recess unfolded as the pause took hold, while Israelis continued to go to the streets to voice their opinions.
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.
According to one Israeli translation service, Middle East Monitor, “Moody’s indicated that, that the key trigger for lowering Israel’s credit outlook to “stable” was concern that the planned changes to the legal system would threaten the independence of the judiciary, which is crucial. Speaking at a webinar after the outlook downgrade, Moody’s Senior Vice President Kathrin Muehlbronner explained that the credit agency assesses a country’s strength of executive and legislative institutions, the strength of its civil society and the judiciary and how effective they are. “The only driver for our rating action were the events around the government’s plans for judicial changes which have shown us that, in Israel, you can have a government that is willing to take pretty significant risks with economic and social stability,” said Muehlbronner. “Our main concern is the executive pushing through important changes to the institutional setup of Israel at such a speed, and without any dialogue really, for us is not a sign of strong institutions.”
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.
See Ken Stein’s overview summary in “Context and Consequences of Israel’s Proposed Judicial Overhaul,” (1:16 video and audio), March 30, 2023. For an excellent analysis of the origins of Israel NOT voting on a constitution in 1948, see Neil Rogachevsky, “Against Court and Constitution: A Never Before Translated Speech by David Ben Gurion,” Mosaic Magazine, March 10, 2021, and on the background of the Declaration of Independence, listen to Neil Robachevsky and Dov Zigler “The Political Philosophy of Israel’s Declaration of Independence,” Mosaic, March 31, 2023. Putting the discussion of Israel’s public debate in its democratic context was Dennis Ross and David Makovksy, “Israeli Public’s Commitment to Democracy Shines as the Country Turns 75,” The National Interest, April 27, 2023.
Ken Stein, May 1, April 4, March 23, March 5, and February 11.