In Israel, the Knesset is the legislative branch of government. It is joined by the Executive, which forms the Cabinet, the Presidency, which is mostly ceremonial, but carries significant gravitas, and the Judicial, headed by the Supreme Court. As in America, the legislative branch passes laws, and, if challenged, the Supreme Court rules on their constitutionality. It’s democracy in action. Checks and balances just as in the USA.
That may be changing.
When Israel’s Bennett-Lapid government fell on 30 June 2022, a caretaker government took control until 1 November when the country held elections intending to install its 37th government since 1948. There are 120 seats in the Knesset. Consequently, to take control requires 61 seats, and through two rounds of elections a clear winner did not emerge.
That shifted on 29 December 2022, when the third round of elections created a coalition government, a government unlike any that came before it, a government that is threatening the very fabric of democracy in Israel.
The coalition government consists of six political parties—Likud, United Torah Judaism, Shas, Religious Zionist Party, Otzma Yehudit, and Noam—and is led by Likud’s Benjamin Netanyahu, who has taken office as the Prime Minister of Israel for the sixth time. With the exception of Likud, the other five parties are right-wing and religiously conservative, hugely influenced, perhaps dominated, by Israel’s ultra-Orthodox community, known as the Haredim.
The Haredim have long enjoyed benefits unavailable to other Israeli citizens: exemption from army service for Torah students, government stipends for those choosing full-time religious study over work and separate schools that receive state funds even though their curricula barely teach government-mandated subjects.
In the December election, Netanyahu’s Likud party corralled 32 seats, the other five parties another 32. The coalition, with 64 seats, took control of government and formed a Cabinet, a far right, autocratic Cabinet.
Nearly the first thing the new government did was to announce plans to limit the power of the Supreme Court.
Under the plans announced by Justice Minister Yariv Levin on 4 January, a simple majority in the Knesset, 61 votes, would have the power to effectively annul Supreme Court rulings. This would enable the government of the day to pass legislation without fear of it being struck down. It’s called the “override” provision, in that the Knesset could override a Supreme Court ruling. This would absolutely happen, because, unlike in the U.S., where legislators may vote their conscience (of course, they may pay for that later), Israeli Knesset members must vote as their coalition demands.
The new plan also seeks to end the Supreme Court’s ability to revoke administrative decisions by the government on the grounds of “reasonability” (what would a reasonable person say about this?), significantly decreasing judicial oversight. And it envisions giving the government and the coalition in parliament absolute control over appointing judges. Unlike the U.S., Israel’s Supreme Court has a say in appointing judges, at least for the moment.
The final spanner the new government threw into the judicial works is that for the Supreme Court to strike down a Knesset-passed law would require 80% of the judges voting for such a ruling. But even if that happens a simple Knesset majority could “override” the ruling.
There is another issue to deal with. The religiously conservative coalition members have long been fervent advocates for more Jewish settlements in the occupied West Bank. The proposed law could make it easier for the government to legislate in favor of such settlements without having to worry about challenges in the Supreme Court. To blunt international criticism of settlement construction, Israel has in the past pointed to the power of the court to rule against it. If the Override law passes, the country won’t be able to use that defense again, exposing it to even fiercer critiques.
This plan passed out of its Knesset Committee this morning, which is significant, and is now on the way to passage in the full Knesset (it will have go through three votes to cross the finish line—a matter of a week or two).*
The Biden administration, the American Jewish community and most of the European Union are dead set against this remaking of the Israeli judicial system. As is the Bank of Israel, whose governors opined the change will do significant harm to the nation’s economy. As are the CEOs of the country’s leading industries, especially technology and manufacturing.
American Secretary of State Antony Blinken publicly criticized the Israeli government when he met with Netanyahu on 2 February in Israel. The next day, Netanyahu flew to Paris where French President Emmanuel Macron told him to his face the plan would “hurt Israel’s place in the world economy.” Macron “expressed bluntly” that the proposed judicial shakeup “threatens to break the power of the Supreme Court, the only institutional counter-power in the government,” and that, “Paris should conclude that Israel has emerged from a common conception of democracy,” if the planned changes take effect. And yesterday, President Biden also politely suggested the plan is a bad idea when he said, “Israeli democracy is built on an independent judiciary.”
You can add the Israeli public to the naysayers. Yesterday, hundreds of thousands poured into streets around the country to protest, 80,000 of them outside the Knesset.
In this witch’s brew there exists a significant looming complication: the Three Trials of Benjamin Netanyahu, a long-delayed, 3-part felony corruption case.
Prime Minister Netanyahu faces bribery, fraud and breach of trust charges, each being tried separately at the same time in Jerusalem. He has denied all accusations, vociferously attacking those who seek to prosecute him. Sound familiar?
Israel’s former Justice Minister brought the charges against Netanyahu in 2021, but circumstances, mostly pandemic-oriented, forced two delays. But that’s in the past, and the trials are ongoing now. Netanyahu has said that he will not use his new authority as Prime Minister to upend the legal process, he’ll be mindful of “conflicts of interest.” However, Netanyahu is the leader of the coalition carrying this foul-tasting, stink-producing, judicial bag of ten-day-old fish through the Knesset.
And here’s a question, a pretty big “what if.” What if the Knesset passes the override law as is and Israel’s Supreme Court rules it unconstitutional? In that event does the government simply say, “No, we’re overriding you?”
Amir Tibon, Senior Writer and Editor for Harretz, a leading Israeli liberal newspaper, has reported that as far back as a decade ago Netanyahu staunchly defended Israel’s judicial system and continued to do so right up until this latest government. To get along with his coalition partners that faith in the judiciary may be a thing of the past.
Last night, recognizing that this road ends with a long fall from a high cliff, Israel’s President Isaac Herzog in a surprise address to the nation stressed the importance of reaching a broad compromise and presented his own plan for Israel’s balance of powers. Harretz reported today that, in what might be a violation of Netanyahu’s “conflict of interest pledge,” following the President’s address he and Justice Minister Yariv Levin met late into the night to discuss it and plan a response.
Will any of the national and international criticism make any difference? The religious political parties are basing their passionate advocacy on deeply held religious beliefs. Netanyahu and Likud need them to stay in power. How does one ask people to temper their beliefs?
Israel and America are longstanding, dedicated partners. Despite meaningful differences in our approach to the middle east, our two countries aspire to similar values. Tearing apart Israel’s judiciary will remove an important, perhaps vital, brick in its house of justice, its house of democracy, a brick we each have long held dear.
The coalition government is doing its best to pound a square peg into a round hole. I know it can be done. I also know if it is, the peg will no longer be round, no longer be square, but it sure will be ugly.
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*Sorry, I could not resist a reference to Sunday’s Super Bowl, a game where, once again, I picked the losing side.