Bethan McKernan
The Guardian / September 12, 2023
Constitutional crisis on cards as supreme court justices are asked to consider curbing their own powers.
Israel’s Supreme Court has begun hearing challenges to the first plank of the far-right and ultra-religious government’s wide-ranging changes to the judiciary passed by the Knesset in July: abolishing the court’s power to overrule government decisions.
A full-blown constitutional crisis is now on the cards as the justices weigh in on legislation curbing their own powers, while government ministers have indicated they will not comply with any ruling striking the law down.
The coalition’s judicial overhaul has widened already deep religious, ethnic and class divides in Israel, thrown the military into chaos and damaged both its currency – the shekel – and relations with international allies.
What is happening ?
In July, after seven months of debate, the government managed to scrap the “reasonableness” clause allowing Israel’s unelected supreme court to overrule government decisions.
It is a major part of the proposals for changes to the judiciary. Protests in March brought the country to a standstill and forced the government to abandon plans to push through the overhaul in one big package. Instead, it is being presented as a number of smaller bills.
The hearings in the supreme court to challenge the bill put the country’s top judges in the unprecedented position of evaluating their own roles, but it is unclear which way the 15-judge panel, made up of a mix of liberal and conservative justices, will lean.
Israel’s supreme court has never overturned a quasi-constitutional “basic law” before and several government ministers have said that any attempt to do so would be illegitimate.
Two additional appeals are due to be heard in the court over the month of September against legislation that critics argue protect the positions of the prime minister, Benjamin Netanyahu, and his political allies.
What else is the government proposing ?
Among a range of far-reaching proposals from Netanyahu’s government are plans to allow a simple majority of 61 in the 120-seat Knesset to override almost any supreme court rulings, and to allow politicians to appoint most of the justices to the bench.
The changes are spearheaded not by the prime minister, but by his Likud party colleague Yariv Levin, the justice minister, and the Religious Zionist party lawmaker Simcha Rothman, who chairs the Knesset’s law and justice committee. The measures could technically help Netanyahu evade prosecution in his corruption trial. He denies all charges.
Levin and Rothman have a longstanding hatred of Israel’s supreme court, which they see as too powerful and as biased against the settler movement, Israel’s ultra-religious community, and the Mizrahi population, Jewish people of Middle Eastern origin. In particular, many on the Israeli right have never forgiven the court for decisions related to Israel’s unilateral withdrawal from the Gaza Strip in 2005.
Why is this happening now ?
Netanyahu’s trial triggered four years of political crisis in which Israel was split over whether he was fit to lead the country. After five elections since 2019, in which politicians on both sides failed to form stable governments, a bloc of extremist and religious parties headed by Netanyahu’s Likud won a clear majority in elections last November, going on to form the most rightwing administration in Israel’s history.
Full annexation of the occupied West Bank, a rollback of pro-LGBTQ+ legislation, axing laws protecting women’s rights and minority rights, and a loosening of the rules of engagement for Israeli police and soldiers are all on the coalition’s agenda.
What do critics of the measures say ?
Worries that the proposals will result in an erosion of democratic norms and the rule of law have sparked the biggest protest movement in Israeli history, with weekly demonstrations in Tel Aviv and many more outside the Knesset in Jerusalem. There have been several “days of disruption” since January, in which protesters have blocked highways and Tel Aviv airport.
As the months have worn on, police have cracked down on protests with increasing force, and hundreds of people have been arrested. The movement is largely leaderless but significant pressure has come from members of the military, who fear the judicial overhaul will make Israelis more vulnerable to prosecution in international courts for war crimes.
The tech sector has also been vocal, citing fears about foreign investment and the startup sector.
The US president, Joe Biden, who has repeatedly described himself as a “true friend of Israel”, has been publicly critical of the plans.
What happens next ?
The supreme court could take until January to hand down a ruling on the legitimacy on the “reasonableness” clause, but parliament will reconvene in mid-October, after the Jewish high holidays. It is expected that more bills related to the judicial overhaul will be brought to the Knesset plenum, and that the protest movement will ramp up its opposition.
More demonstrations and strike action are likely. Upwards of 10,000 military reservists have announced they intend to refuse to report for service, despite security establishment worries of flare-ups with the Palestinians and Lebanon.
Compromise talks between the government and opposition parties brokered by the country’s figurehead president, Isaac Herzog, have repeatedly broken down, but new attempts at dialogue were reported by Israeli media ahead of the supreme court hearing.
Netanyahu, keen as always to play both sides against each other, has said he aims to “reach a national consensus to restore the balance of power” between the branches of government.
Bethan McKernan is Jerusalem correspondent for The Guardian
