TEL AVIV—Israeli Prime Minister Benjamin Netanyahu said he’s postponing the process of passing a judicial overhaul in Israel in order to engage in dialogue with the opposition and reach an agreement on an acceptable framework.
Netanyahu’s announcement on March 27 follows months of protests in opposition to the government’s judicial reform proposal, during which various media outlets expressed concern about the possibility of escalating unrest.
“I am not willing to tear the people apart. I have called for dialogue for three months,” Netanyahu said in his speech. “We are not facing enemies but brothers, and I say here and now—there must not be a war of brothers.”
At the same time, Netanyahu highlighted what he described as “the need to bring the necessary fixes to the justice system” and there being “an opportunity to achieve a broad agreement.”
Opposition leader Yair Lapid reacted to Netanyahu’s speech:
“The State of Israel is wounded and hurting. We need to sit together and write a constitution based on the Declaration of Independence. ... We need to trust the president as a fair mediator. From bitter experience in the past, we will first ensure that there is no deceit or manipulation.”
“We have heard with concern the reports that Netanyahu told his confidants that he is just calming the waters. If he tries to play games with us—he will again find people who will fight against his trickery," he warned Netanyahu.
“Stopping the legislation is the right thing to do,” President Isaac Herzog said about the desire to reach an agreement on the issue. “It is time to start a sincere, serious, and responsible dialogue that will urgently calm the spirits and reduce the flames ... for our unity and for the future of our sons and daughters—we need to start talking here and now.”
On March 25, while Netanyahu was on a diplomatic visit to London, Defense Minister Yoav Galant held a news conference, during which he called on the prime minister to stop the legislation—contrary to the government’s opinion.
“Now, I say this aloud, publicly—for the sake of Israel’s security, for the sake of our sons and daughters: The legislation process must be stopped at this time, and the protests and demonstrations must be stopped, and a hand must be extended for dialogue,” Galant said in a statement. “Any expression of refusal that undermines the power of the IDF and harms the security system must be immediately stopped.”
Netanyahu announced Galant’s dismissal the following day.
Channel 11 News website reported that Netanyahu had “lost trust in him after he acted against the government and the coalition while the prime minister was on a diplomatic visit abroad,” and that “Minister Galant did not coordinate his words with the prime minister in advance, thereby undermining efforts to reach a solution.”
Minutes after the announcement of his dismissal, Galant responded.
“The security of the State of Israel has always been and will always be my life’s mission.”
The immediate response to the dismissals sparked protests that continued into the night against the overhaul plan.
On March 27, following the protests and in response to Galant’s firing, the Histadrut organization—the body that groups together workers’ organizations in Israel—announced a general strike until the legislative process of the judicial reform is frozen.
Banks, hospitals, malls, and the airport in Israel were shut as part of the strike. Later that evening, after Netanyahu’s announcement to halt the process, the Histadrut declared an end to the strike.
Judicial Reform
On Jan. 4, Minister of Justice Yariv Levin announced plans to drastically reshape Israel’s judicial system.“We go to the ballot box, vote, choose, yet time and again, people we didn’t vote for decide for us,” he stated in his opening remarks. “Many people turn their eyes to the legal system and their voice is not heard.
“This is not a democracy,” he said. “I have been dealing with this issue for over 20 years, during which I warned about the dangers of judicialization, and formulated proposals and reforms.
“Unfortunately, the risks I warned of have materialized. Therefore, the time has come to act,” Levin added. “Today, I am launching the first stage of the reform of the courts, the purpose of which is to strengthen democracy, restore the courts, restore trust in the legal system, and restore the balance between the three branches of government.”
- Changing the committee structure for appointing judges so that the coalition will have a majority when appointing judges, instead of the current situation in which the Supreme Court judges themselves have the right and veto power in appointing judges.
- Amending the law nullification process and enacting a “supermajority” clause of 61 members out of the 120 Knesset members. If the Supreme Court wishes to nullify a law, a decision of a full panel of 15 judges will be required. The Supreme Court won’t be able to nullify basic laws. (Later, the proposal was changed to a special majority of 80 percent). The Knesset will be able to reenact any law that has been nullified, with a majority of 61 Knesset members out of 120 Knesset members.
- Abolishing the “reasonableness” justification in Supreme Court rulings. Currently, the Supreme Court can nullify laws enacted by the Knesset based on a “reasonableness” argument, which means using discretion when dealing with a “reasonable person.” This means that even if the law the Supreme Court wants to nullify does not clearly violate existing basic law, it can still be nullified based on “reasonableness,” according to the judge’s discretion. The reform aims to change this.
- Changing the role and authority of legal advisers to government ministries—legal opinions of legal advisers to government ministries will be a recommendation, advice, and not legally binding. Legal advisers will serve only as advisers. Practically, this means that the reform will turn the positions of legal advisers to government ministries into positions of trust appointed by elected ministers, rather than being subject to the legal adviser to the government.
On Jan. 12, Supreme Court President Esther Hayut responded for the first time to the content of the plan.
“This is a plan to dismantle the justice system,” she said at the annual conference of the Association for Public Law. “It is intended to impose a fatal blow on the independence and impartiality of the judiciary system, and turn it into a mute authority. ... This conclusion arises from both the way the minister chose to present his plan and from its nature and essence. As I have stated more than once, judicial independence and impartiality are the soul of the court, and without them, Israeli judges will not be able to fulfill their role as public servants and as its guardians.
“The facts speak the truth and teach us that these are baseless allegations and that the changes proposed in the plan not only are unnecessary to balance the authorities, but their implementation will upset the delicate balance between them, and lead to serious and dangerous violation. As an example of how baseless these claims are, it should be noted that since the Fundamental Law: Human Dignity and Liberty was enacted in March 1992 and to this day, the Supreme Court has intervened in 21 laws or sections of laws.
“Out of thousands of laws enacted by the Knesset during this period. ... Data related to other democratic countries such as the United States, Canada, and Germany, teach us that the rate of legislation invalidation by the courts there is much higher than in Israel.”
This step taken by the court’s president, in which she chose to express opposition to the government in public, is considered highly unusual in the State of Israel. Judges in Israel typically don’t take a stance on controversial societal issues, especially not in an official speech to the general public.
“A judge shall refrain from expressing an opinion in public on a matter that is not primarily legal and is subject to public dispute,” according to the ethical guidelines for judges in Israel, section 18, under the heading Expression of Opinion in Public.
The Economic Aspect
In March, Bank of Israel Gov. Amir Yaron, stated in an interview with CNN that the proposed changes in the legal system is “a risk of harm to institutions, and it is very dangerous for the economy.” The chief economist at the Treasury, Shirah Greenberg, also estimated that “as the legal reform is perceived by the market as harming the strength and independence of state institutions and increasing uncertainty in the investment environment, it may harm economic activity in the economy, particularly private investment.”Warnings were joined by high-tech investors, economists, and heads of financial institutions. In January, S&P Global Ratings warned that the overhaul plan could lead to a downgrade of Israel’s credit rating, and in March, similar general warnings were issued by credit rating firms Fitch and Moody’s. In the event of a credit rating downgrade, the economy might lose 15 billion to 30 billion shekels (about $4.2 billion to $8.5 billion) per year, senior finance ministry officials estimated in a document submitted to the minister.
Meanwhile, the Israeli government attempted to dispel the concerns. It noted the nation’s stable macroeconomic situation—its relatively low national debt, surplus in current accounts, and years of fiscal restraint—and countered that those who expressed alarm are biased against the Netanyahu government.
In Israel, the government debt-to-GDP [gross domestic product] ratio fell in 2022 to 59.2 percent from 66.2 percent in 2021, well below the Organisation for Economic Co-operation and Development average of 124 percent. The Israeli economy, which expanded by 6.5 percent in 2022, is expected to grow by about 3 percent in 2023 at a time of economic slowdowns in the United States and Europe.
The Legal History of Israel
Since the establishment of the State of Israel in 1948, no formal constitution has ever been enacted, which means that Israel technically has no constitution. In 1992, a new legal situation was created in Israel when the Knesset enacted the “Basic Law: Human Dignity and Liberty” and the “Basic Law: Freedom of Occupation,” which enshrined human rights in the country’s laws.As a result of these two Basic Laws, a constitutional revolution took place in Israel. The Supreme Court interpreted these laws as a substitute for a constitution, and as a result, it established the “Eastern Orthodox Law” in 1995. In this ruling, the Supreme Court of Israel established that Israel has a formal supreme law in the form of the Basic Laws and that the Supreme Court is authorized to protect it through judicial review of primary legislation.
Led by Chief Justice Aharon Barak, the Supreme Court effectively determined that it has the authority to strike down laws that do not meet the criteria of the limitation clauses, which state that a new law cannot contradict the Basic Laws.
This revolution changed the face of the legal system in Israel and gave the Supreme Court the power to override the decisions of the legislature, including decisions of the Knesset. Those who lead today’s proposed legal reform in Israel argue that the country should return to the situation prior to 1995, when the court couldn’t invalidate laws—a power that they claim the court seized illegally.
Regarding the composition of the committee for the selection of judges, proponents of the reform claim that in the current committee, judges themselves are given the ability to appoint judges. The argument is that the majority required for the selection of a judge is seven of nine committee members, which must include agreement from the judges—who have three representatives on the committee—and from members of the Bar Association, who have two representatives on the committee.
Another claim is that members of the Bar Association coordinate with the judges’ wishes, thus creating a coalition within the committee that does not necessarily reflect the will of the people. This could result in a situation where the judges appoint those who suit their views rather than those who represent the people, and therefore the goal is to change this to a system in which representatives of the people appoint the judges.
On Feb. 21, attorney Zion Amir, considered one of Israel’s senior lawyers, was interviewed on radio station 103fm, during which he said “there needs to be a balance and brakes between the three branches of government, so that no one is too powerful and tramples the other branches.
“The judiciary has taken on enormous powers over the years. ... They agreed and decided that they have the authority to overturn laws, the Basic Laws,” he said. “Doesn’t that seem to you like a serious infringement and a severe overstepping of their authority and position as an authority or implementer or legislator?”
On Feb. 11, 150 senior lawyers in Israel participated in a conference in support of legal changes. Attorney Zeev Lav, legal adviser for the Movement for Governance and Democracy, called for the voices of reform supporters to be heard publicly.
“We are the majority and the majority supports reform.”
On March 2, 120 professors from universities throughout Israel published a statement supporting comprehensive legal reform and argued that “a systemic legal reform is vital.” On March 10, an additional 80 professors joined this statement. Throughout the month, more academic figures have joined the movement, and as of March 14, about 500 senior academics had signed on.
The Protests
The current protests oppose judicial reform and express dissent against potential harm to the legal system and democratic structure of Israel. In fact, the recent demonstrations are similar to the “Black Flag” protests or the “Balfor protests” that were seen in Netanyahu’s previous tenure.These protests were actually a series of ongoing public protests that began in numerous locations in Israel from June 2020 until May 2021, demanding Netanyahu’s resignation as prime minister. The protesters accused Netanyahu of corruption and deliberate harm to the institutions of law and order in his fight against the criminal proceedings against him. The protesters fought against the continuation of Netanyahu’s tenure amid allegations that he put his personal and legal interests ahead of the good of the country.
The protests continued throughout the country even during the COVID-19 lockdowns, which limited the freedom of movement and assembly of Israeli citizens, and continued until the end of Netanyahu’s tenure as prime minister with the swearing-in of Israel’s 36th government, led by Naftali Bennett and Yair Lapid.
In the Nov. 1, 2022, elections, the right-wing bloc in Israel, led by Netanyahu, won 64 seats in the Knesset, ensuring that Netanyahu would return to his position as prime minister.
“If Netanyahu harms the national interests of the State of Israel, if he harms Israeli democracy, education, and the IDF as the people’s army, the way to deal with it is to take a million people to the streets,” Gadi Eisenkot, former chief of staff and member of the Knesset from The State Camp opposition party, told the Yediot Ahronot newspaper at the beginning of December.
He made the statement was made before any action was taken by the government and before it was sworn in.
On the same day, then-Prime Minister Lapid sent a letter to the heads of authorities in Israel, calling on them not to cooperate with the decisions of the incoming government on education issues, citing the expected appointment of right-wing Knesset member Avi Maoz to lead a committee that would determine which external content will be added to school curricula.
“I am writing to you with great concern for the future of the education system and the country, as the new government in Israel has abandoned our children’s education and handed them over to the most extreme and darkest elements in Israeli society,” Lapid wrote, adding, “As you know, this is an extreme, racist, homophobic, and dangerous party. I call on you not to cooperate with the unit for external programs and partnerships in the Ministry of Education as long as it is under the control of Maoz.”
On Dec. 9, before the swearing-in of the new government, the Yesh Atid party, led by Lapid, held a protest against the incoming government.
“We are fighting for democracy and for the future of our children, and we will never give up,” Lapid said, during an appearance at the protest.
On March 27, the first protest in Jerusalem since the announcement of the legal overhaul plan was held, specifically to express support for the legislation. After Netanyahu announced the postponement of the vote on the plan, protests continued for and against the legislation in various areas. It’s important to note that the protests, for the most part, aren’t exceptional, and aside from blocking roads in certain areas, haven’t disrupted the normal functioning of the state.
“The protest has folded Netanyahu, the coup leader, and will continue with all its might until sanity is restored to leading the country,” former Prime Minister and Defense Minister Ehud Barak, who is one of the leaders of the protest, wrote on Twitter. “Without Netanyahu.”
Barak isn’t the only one who claims that it isn’t enough to stop legislation and reach agreements; he says that Netanyahu must be removed from his position as prime minister. Avigdor Lieberman, a former senior minister and now an opposition member, also responded to Netanyahu’s speech, saying that it “proves that Netanyahu is more determined than ever to complete all the legislation, including the Basic Law on the Judiciary and taking control of the Supreme Court.”
“He has no intention of promoting real dialogue, but rather his intention is to wait for a convenient time to discredit the protest and to blame the opposition for not agreeing to a compromise. Therefore, we must continue the protest, in order to establish a new coalition.”
What Is Expected to Happen Next?
The Knesset will be in recess from April 2 to April 29, with its summer session to begin on April 30 and continue until July 30. That means Netanyahu has been delayed by up to four months in his effort to enact the legislation.The legislation that would change the composition of the committee for selecting judges was placed on the Knesset’s table for a second and third reading vote, which the Knesset clarified is only a technical process. Additionally, there is currently no intention to vote on the bill, but the implication is that the coalition can bring it to a vote whenever it wants.
The parties already have begun appointing representatives for talks on the reform. The Democratic Camp Party’s leaders, opposition leaders Benny Gantz and Lapid, and Netanyahu have appointed representatives to discuss the matter at the president’s residence.
The sides are expected to try to reach an agreement that can be agreed upon by all representatives and will solve the dispute in public. Currently, the leaders of the protest against the reform continue with calls not to stop the protest, and the demonstrations are expected to continue, although it isn’t clear to what extent and intensity in light of the expected talks at the president’s residence.
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