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Israel Set to Dismantle Supreme Court and Any Judicial Opposition

With a mere four-seat majority, the new government is preparing to enact one of the most far-reaching power grabs in the country’s history – ending, almost at a stroke, the only checks and balances to the power of the parliament

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Israel Set to Dismantle Supreme Court and Any Judicial Opposition
Protesters in Tel Aviv march with flaming torches as they protest against the Israeli government’s plan for a dramatic justice reform on January 8, 2023. Photo by Amir Levy/Getty Images

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On the evening of Jan. 5, a politician with the dry manners of a suburban accountant but the inner fury of a steely zealot stepped up to a podium in Jerusalem and declared his intention to end Israeli democracy. 

In a primetime press conference, Yariv Levin, the new justice minister in Benjamin Netanyahu’s two-week-old government, announced a series of far-reaching changes to the country’s judicial system that, if put in place, would hand unchecked power to the government and parliament. 

Gone would be the Supreme Court’s ability to strike down legislation or government decisions deemed illegal — any such ruling could now be “overridden” with a simple parliamentary majority. Gone would be the consensual appointment process historically used to pick judges — the government would dominate the process, packing the courts with its own. No longer will professional legal advisers in the various ministries provide impartial and binding legal advice — they would all now be political appointees, almost guaranteeing their bosses a free hand. 

Current and former judicial officials, legal experts and opposition leaders have all been clear: This is looming as the most severe constitutional crisis in the country’s history, a form of “regime change” via legislation.

“The closest parallel would be a revolution with tanks,” one former Supreme Court chief justice said last weekend, raising the specter of a “hollow democracy” like in Poland and Hungary. 

Israel famously has no constitution, no upper house of parliament, no federal division of authorities, and no separate executive with veto power (say, a president). 

Voters simply choose one national parliament, which then invests a government with executive power. The “unbearable lightness” of the Israeli system, Prof. Suzie Navot, a vice president at the Israel Democracy Institute, a non-partisan think thank, said to me.

In the wake of the general election last Nov. 1, Netanyahu and his Jewish nationalist and ultra-Orthodox allies dramatically returned to power on the back of a four-seat parliamentary majority, forming a government widely viewed as the most far right ever. Hence the genuine fear over the gutting of the Supreme Court and the elimination of any checks and balances and separation of powers.

As Attorney General Gali Baharav-Miara, the country’s highest legal official, warned last month, Israel would “be left with the principle of majority rule alone. That and nothing more, democracy in name only but not in substance” if the above plans were implemented. 

Levin, the justice minister, has been clear: This is only the first stage of what he has euphemistically termed his “judicial reform” agenda. Legal experts expect subsequent moves to include the undermining of the attorney general post itself, with the end goal (as some predicted last summer) to halt Netanyahu’s ongoing corruption trial. 

The rest of the Netanyahu coalition, including Levin, are longstanding ideological opponents of the courts and legal advisers — seeing in them a meddlesome check on issues like unimpeded building in West Bank settlements, blanket exemptions for the ultra-Orthodox to serve in the military and the violation of minority rights including those of Arab-Israeli citizens or African economic migrants. 

Alan Dershowitz, the lawyer and pro-Israel activist known to be close with Netanyahu, told Israel Army Radio this week that even he thought the proposed “reforms give far too much power to the majority” and that “civil liberties and minority rights are in danger.”

Navot concurred, explaining that absent Supreme Court oversight “the government can do whatever it wants, with no limits. There will be no one that can come and tell them no.” 

Last week I put the government’s agenda to a prominent left-wing activist, wondering whether he was concerned that various Israeli human rights organizations would, in the future, be banned. 

“Forget about those groups,” he said, ratcheting up the hypothesis. “Think about what happens if the parliament passes a law outlawing Balad,” the Arab-Israeli political party considered the most “radical” for its championing of Israel as a “state of all its citizens.” 

“[If] they outlaw Balad the other Arab-Israeli parties will have no choice but to boycott the next election in solidarity. And there will likely also be many left-wing Israeli Jewish voters who will do the same,” he added. Netanyahu and his right-wing allies would then have a clear path for electoral victory, in perpetuity. 

For their part, Netanyahu, Levin and other government officials maintain that they are simply seeking to “restore the correct balance” between the different branches, to rein in what they view as an overly activist left-wing Supreme Court and to “return sovereignty back to the people” (as represented in its elected officials).

As Netanyahu put it in a cabinet meeting earlier this week: “This is not the destruction of democracy but the strengthening of democracy … . This is the implementation of the will of the voters and this is the essence of democracy.”

No matter that over the past nearly three decades the Supreme Court has struck down a grand total of 22 laws; no matter, too, that the Supreme Court has in the past often weighed in on the side of Jewish settlers, the Israeli military, ultra-Orthodox petitioners and even Netanyahu himself. 

More to the point, opinion polls going back over a decade have shown that a majority of Israelis are in favor of the Supreme Court retaining the power to strike down unconstitutional laws. 

To all these arguments, and the firestorm of criticism from many quarters, Netanyahu and Levin have a simple response: The biggest opinion poll was taken in November, it was called an election, and we have a mandate from the public to move forward. They have shown no inclination of backing down. 

And in truth, there is no political or legal mechanism that can force them to back down and either attenuate or halt the legislation Levin has proposed. 

The only tool available to critics of the planned “reforms” may just be a major public outcry — as expressed in widespread demonstrations — which is what former judicial officials and current opposition leaders have now called for (including Arab-Israeli political leaders who have emphasized the stakes to their own community). 

“The time has come to make the country ‘shake,’” former Defense Minister Benny Gantz said this week as he urged the public to take to the streets. 

Netanyahu shot back that this was tantamount to “sedition,” with two far-right members of his coalition demanding that the police arrest Gantz and opposition leader Yair Lapid for “treason.” The prime minister quickly disassociated himself from the remarks, although Itamar Ben-Gvir, an ultranationalist whom Netanyahu made national security minister in charge of the police, called for his forces to crack down on anti-government protests in Tel Aviv. 

It remains to be seen how the police handle a mass demonstration planned for this Saturday, Jan. 14, and senior officers reportedly have no intention (for now) of altering their usual practices. Yet how long Ben-Gvir waits until he begins firing the police high command for ignoring his orders is an open question, as is whether judges and other legal officials resign in protest when the government begins carrying out its judicial plans in earnest.

The current Chief Justice of the Supreme Court, Esther Hayut, yesterday evening (January 12) already felt compelled to give an unprecedented primetime speech blasting the government’s plans to “destroy” the court and fatally undermine Israeli democracy. A short while later, Levin gave his own unprecedented televised speech calling her remarks partisan and tantamount to “setting fire to the streets.”

These and other longstanding taboos of Israeli (Jewish) politics are beginning to crack, with once unthinkable ideas like mass civil unrest — and worse — being aired openly.

“If you continue down this road, the responsibility for the civil war that is simmering in Israeli society will be on you,” Gantz warned Netanyahu. 

Yet some fear it may already be too late to fully reverse course.

“We are no longer on the brink of the abyss; we are inside the abyss,” Navot concluded. “The crisis is here.” 

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