A threat to democracy or much-needed reform? Israel’s judicial overhaul explained
By Hadas Gold, CNN
For months, hundreds of thousands of Israelis have been taking to the streets across the country to protest far-reaching changes to Israel’s legal system some say threaten the country’s democratic foundations.
Tensions rose further this weekend when Prime Minister Benjamin Netanyahu abruptly fired Defense Minister Yoav Gallant over his opposition to the planned overhaul, prompting mass street protests and widespread strike action.
At its core, the judicial overhaul would give the Israeli parliament, the Knesset, and therefore the parties in power, more control over Israel’s judiciary.
From how judges are selected, to what laws the Supreme Court can rule on, to even giving parliament power to overturn Supreme Court decisions, the changes would be the most significant shakeups to Israel’s judiciary since its founding in 1948.
The proposed reforms do not come out of nowhere.
Figures from across the political spectrum have in the past called for changes to Israel’s judiciary.
Israel has no written constitution, only a set of quasi-constitutional basic laws, making the Supreme Court even more powerful. But Israel also has no check on the power of the Knesset other than the Supreme Court.
Here’s what you need to know.
What are the changes and what are the reasons behind them?
The judicial overhaul is a package of bills, all of which need to pass three votes in the Knesset before they become law.
One of the most important elements for the Netanyahu government is the bill that changes the makeup of the nine-member committee that selects judges, in order to give the government a majority of the seats on the committee.
Netanyahu and his supporters argue that the Supreme Court has become an insular, elitist group that does not represent the Israeli people. They argue the Supreme Court has overstepped its role, getting into issues it should not rule on.
Defending his plans, the prime minister has pointed to countries like the United States, where politicians control which federal judges are appointed and approved.
Another significant element of the changes is known as the override clause, which would give the Israeli parliament the power to pass laws previously ruled invalid by the court, essentially overriding Supreme Court decisions.
Supporters say the Supreme Court should not interfere in the will of the people, who vote the politicians into power.
“We go to the polls, vote, and time after time, people we did not elect decide for us,” Justice Minister Yariv Levin said while unveiling the reforms at the beginning of January.
Another bill, now voted through, makes it more difficult for a sitting Prime Minister to be declared unfit for office, restricting the reasons to physical or mental incapacity and requiring either the prime minister themselves, or two-thirds of the cabinet, to vote for such a declaration.
How does the move affect Netanyahu?
Although several bills could affect Netanyahu it is the one about declaring a prime minister “unfit for office” that has the biggest implication for the Israeli prime minister.
Critics say Netanyahu is pushing the overhaul forward because of his own ongoing corruption trial, where he faces charges of fraud, bribery and breach of trust. He denies any wrongdoing.
That bill is largely seen by opposition leaders as a way to protect Netanyahu from being declared unfit for office as a result of the trial.
As part of a deal with the court to serve as a prime minister despite being on trial, Netanyahu accepted a conflict of interest declaration. The Attorney General determined that the declaration meant Netanyahu could not be involved in the policy-making of the judicial overhaul. A petition is currently in front of the Israeli Supreme Court to declare Netanyahu unfit for office on the grounds he has violated that conflict of interest declaration and the attorney general has written an open letter to Netanyahu saying he is in breach of the deal and the law.
Critics also argue that if the government has a greater say in which judges are appointed, Netanyahu’s allies will appoint judges they know will rule in Netanyahu’s favor.
Netanyahu, it should be said, has completely denied this and has claimed his trial is “unraveling” on its own.
In the past, Netanyahu has publicly expressed strong support for an independent judiciary. Asked why he’s supporting such an overhaul despite those public proclamations, Netanyahu told CNN’s Jake Tapper: “I haven’t changed my view. I think we need a strong, independent judiciary. But an independent judiciary doesn’t mean an unbridled judiciary, which is what has happened here, I mean, over the last 25 years.”
What do the changes mean for the Palestinians?
Weakening the judicial branch could limit both Israelis and Palestinians in seeking the court’s defense of their rights if they believe they are compromised by the government.
Palestinians in the occupied West Bank could be affected, and of course Palestinian citizens of Israel or those who hold residency cards would be directly affected. Israel’s Supreme Court has no influence on what happens in Gaza, which is ruled by the Palestinian militant group Hamas.
Critics of the changes worry that if the politicians have more control, the rights of minorities in Israel, especially Palestinians living in Israel, would be impacted.
Last year, for example, the court halted the evictions of Palestinian families in the flashpoint neighborhood of Sheikh Jarrah in East Jerusalem, where Jewish groups have claimed ownership of land the families have lived on for decades.
At the same time, Palestinian activists have argued that the high court has further entrenched Israel’s occupation of the West Bank, having never considered the legality of Israeli settlements there, even though they’re considered illegal by most of the international community.
The high court has also been the subject of complaints from Israel’s far right and settlers, who say it is biased against settlers; they have condemned the court’s involvement in approving the eviction of settlers from Gaza and the Northern West Bank in 2005.
What do opponents say?
The overhaul has caused concern across Israel’s financial, business, security and academic sectors.
Critics say the overhaul goes too far, and will completely destroy the only avenue available to provide checks and balances to the Israeli legislative branch.
They warn it will harm the independence of the Israeli judiciary, and will hurt rights not enshrined in Israel’s quasi-constitutional basic laws, like minority rights and freedom of expression.
According to polling released in February by the Israel Democracy Institute, only a minority of Israelis support the reforms. The vast majority — 72% — want a compromise to be reached and, even then, 66% think the Supreme Court should have the power to strike down laws and 63% of Israelis think the current method of appointing judges should stay as it is.
Members of the typically apolitical high-tech sector have also spoken out against the reforms. Assaf Rappaport, CEO of cybersecurity firm Wiz, has said the firm won’t be moving any of the $300 million capital it recently raised to Israel because of the unrest over the overhaul.
Israel’s Central Bank Governor Amir Yaron told CNN’s Richard Quest that the reforms are too “hasty” and risk harming the economy.
Several former Mossad chiefs have also spoken out against the reforms, warning division over the issue is harming Israeli security. Hundreds of reservists in Israel’s army have warned they will not answer the call to serve if the reforms pass, saying they believe Israel will no longer be a full democracy under the changes.
Israeli President Isaac Herzog has said the government’s legislation is “misguided, brutal and undermines our democratic foundations,” and warned Israel was potentially on the brink of a “civil war.” Although the Israeli presidency is largely a ceremonial role, Herzog has been actively speaking with all parties calling for negotiations.
On Monday, he urged the government immediately to halt the judicial reform process, saying “the eyes of the whole world are on you.”
And on the international front, Israel’s allies, including the United States, have also expressed concern about the overhaul.
According to the White House, US President Joe Biden told Netanyahu in a mid-March phone call that “democratic societies are strengthened by genuine checks and balances, and that fundamental changes should be pursued with the broadest possible base of popular support.”
What happens next?
Protest organizers say they plan to intensify their demonstrations until the legislation is halted. But the government says it received a mandate from voters to pass the reform when it was elected last November.
In mid-March, the coalition government softened its plans for the first time, announcing that it had amended the bill that would reform the committee that selects judges. Instead of having the vast majority of the appointed seats on the committee, the government-appointed members would have a one-seat majority.
Netanyahu has vowed to keep advancing the reforms. But his decision to fire Gallant on Sunday, a day after the defense minister called for a pause in the government’s drive to overhaul the country’s judicial system, sparked turmoil. Gallant, a member of Netanyahu’s Likud party, was the first government minister to take a public stance in favor of a delay.
The Israeli labor federation Histadrut on Monday called a “historic” general strike to heighten pressure on Netanyahu to halt his judicial overhaul. Port, airport and retail workers were among those to walk out.
Meanwhile, Israel’s former Prime Minister Yair Lapid urged Netanyahu to reverse his decision to fire Gallant and told his government to halt its judicial overhaul, telling the Knesset that the country had been “taken hostage by a bunch of extremists with no brakes and no boundaries.”
Netanyahu has previously called for opposition politicians to meet with him to negotiate, something they have said they will only do if the legislative process is halted.
Complicating matters further, should the bills pass parliament the Supreme Court must then potentially decide on laws curbing its own power. This raises the possibility of a constitutional standoff. Would the Supreme Court strike down the laws, and if so, how would the government respond?
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