More than half a year of demonstrations, veterans threatening not to respond to future calls, hundreds of thousands of people in the streets, a human chain around the Knesset, opposition boycotts during debates in the Israeli unicameral parliament; despite all that, nothing can stop the Israeli justice reform proposed by the Netanyahu 6 government, Israel's most right-wing and most religious coalition executive.
The Supreme Court and the "reasonableness" argument
The Israeli parliament took another step, voting on the key element of the legislative package proposed by the ruling coalition - limiting the prerogatives of the Israeli Supreme Court. Since, after the British or Canadian model, the Jewish state does not have a constitution, as I have explained in Veridica, this high court plays an extremely important role in the architecture of Israeli society. One of the tools that the magistrates of this institution had at hand is "reasonableness", a legal concept used by other legal systems around the world, which is invoked when a court decides that an administrative or legislative decision was made without considering "all relevant factors" or without giving fair weight to each relevant element.
In fact, the Israeli Supreme Court is limited in its right to invalidate government decisions, including those of the prime minister, cabinet members or the Knesset, such as appointments or dismissals. Moreover, the government can easily ignore the decisions of other state institutions.
Israeli Prime Minister Benjamin Netanyahu (C), Minister of Defense Yoav Gallant (L)
and Deputy Prime Minister and Minister of Justice Yariv Levin (3-L)
vote on law on justice system reform at the Knesset, Israel, 24 July 2023.
What can Netanyahu gain or lose?
In January, at the very beginning of the largest mass demonstrations in Israel's history, Benjamin Netanyahu was forced to withdraw the appointment of a close associate of his to the position of finance minister. The court blocked the decision, considering it "unreasonable", given that Aryeh Deri (an ultra-Orthodox politician) had been convicted of tax fraud. A "reasonable" decision by the magistrates, as Netanyahu would have placed a "wolf among the sheep" as head of finances. Netanyahu had no choice and had to drop Deri. It wasn't the first time the Court had blocked such controversial appointments, having done so in 2015 and 2012. So, it's no wonder the "reasonableness" argument needed to be struck down by a coalition that wants to use the revision to make sure the judges don’t get “overzealous”. In fact, the law that limits the Supreme Court's use of this concept thus destroys the balance and control mechanisms that underpin Israeli democracy.
It is the first time in Israel's history that the reservists are threatening not to show up for mandatory conscription if this revision goes ahead, at a time of little peace in the East. One should know that in Israel enlistment into the army is compulsory, for both boys and girls. In turn, reservists are obliged by law to participate in military actions for a certain number of days each year, until they reach at least 40 years of age. In emergency situations, the state can compel its entire reserve force, i.e. 400 thousand soldiers, to report to duty. So, the threat of the reservists is not at all negligible, that is why it is not surprising that in such a turbulent context, Israel's ally and partner, the USA, through the American president Joe Biden, urges Netanyahu to stop the justice reform process.
Ordinance 13, the Hebrew version?
Can Netanyahu afford to do this now? To slow down or even stop this reform? Israeli society has never been so divided, and for a politician like Netanyahu this is enormously important, as he is navigating through troubled waters and always wants to reach the shore. So far, it's worked out for him.
The judicial reform is primarily supported by the nationalist and religious parties in the governing coalition. All argue that, in fact, the proposed legislative package does nothing but strengthen the legal system, and therefore the rule of law. But one can't help but look closely at the Netanyahu 6 cabinet and think that, in fact, thanks to the new laws, Netanyahu and other politicians in the coalition he leads could escape corruption trials. Moreover, by diminishing the powers of the Supreme Court, the coalition parties could impose Israeli civil laws in the West Bank or laws that allow the expulsion of Palestinian students accused of identifying with Palestinian symbols.
Some proposals are to Netanyahu's liking, others are not, which explains why the adoption of the justice laws is sometimes delayed by Netanyahu himself. After each voted law, there comes a period of pause, the pretext being either the Jewish Passover or the parliamentary vacation. For Netanyahu and the Likud, these periods allow for the assessment of the political damage caused by each new law. In this way, Netanyahu gives himself time to regroup, to rethink his strategy.
Shalom Lipner, a nonresident senior fellow for the Middle East Programs at the Atlantic Council, believes that “Israel's deeper problem is the identity crisis in which its citizens find themselves embroiled. The "reasonableness" issue, after all, is but the tip of an iceberg whose foundations lie in the existential debate that Israelis are waging over their nation’s Jewish and democratic character.
A general view shows a banner depicting Israeli Prime Minister Benjamin Netanyahu
and the crowd of anti-government protesters attending a protest against the justice system reform
in Tel Aviv, Israel, 27 May 2023.
The two-state solution, slipping away
At global level, including in the United States, Israel's allies have warned of the impact these reforms will have on Israel's democracy. The erosion of democracy in Israel will feed the far left in the US Congress, whose support for Israel has been steadily declining. It’s the group affiliated with the Democratic Party in the US Congress, founded in 1991, which has grown over time. In June, last month, the group had 102 members, of which 100 had the right to vote. The head of this Democratic-affiliated group has recently stated that: "The Palestinian people deserve self-determination and autonomy, (…) the dream of a two-state solution is slipping away." In the same speech, delivered before the Israeli president spoke to Congress, Pramila Jaypal called Israel a racist state , which triggered criticism from the top of American politics, forcing her to retract her statement and publicly apologize. Well, this far-left group will continue to pressure the Biden administration to take action.
Perhaps President Isaac Herzog's visit to Washington, a week before the Knesset vote, was not just a ticked-off presence on the agendas of the two presidents. Although, unlike his American counterpart, the Jewish head of state has limited executive powers, in crisis situations he can become the spearhead of diplomacy. And Israel is going through a crisis today in the relationship with its main ally, the United States.
In Washington, where Netanyahu was invited only somewhere towards the end of the year, Isaac Herzog received direct reproaches from members of Congress regarding the expansion of settlements in the West Bank, which for the Americans represents a weakening of the "two-state" solution, and, of course, the justiced reform. In his speech to the UN General Assembly last year, Joe Biden said: "The United States is committed to Israel’ security. Full stop. A negotiated two-state solution remains, in our view, the best way to ensure Israel's security and prosperity ... and give the Palestinians a state to which they are entitled."
Despite all these reproaches, the Israeli-American partnership is troubled only on a rhetorical level, as evidenced by the fact that the Jewish state is buying from the Americans 25 F-35 planes, the most advanced fighter planes in the world, Israel being the only country in the Middle East with such an equipment. The bill amounts to $3 billion.
Supreme Court vs Netanyahu: September, a new deadline
It is clear that, for now, Netanyahu will not take the step back that he appeared to be taking before Passover. It seems to be more of a strategy. Passing the justice laws one at a time, rather than the whole package at once, gives him time to adjust his strategy on the fly. He wanted to pass part of the Supreme Court law by July 30, when lawmakers are on vacation, and he did.
Now, the Israeli authorities are preparing for an incendiary summer, both literally and figuratively. The protests will not stop, especially since the law voted on Monday came into force on Wednesday evening. This is because the trial of the countless appeals submitted by the Opposition and civil society to the Supreme Court was postponed until September.
The Supreme Court has refrained from freezing the entry into force of the law that limits its own powers. In fact, the Court has never blocked any amendment to the fundamental laws. Instead, it has resorted to other tools, such as the principle of "reasonableness".
In fall, when parliament resumes its work, the Israeli MPs are expected to debate the second key element of the justice package, the Judicial Appointments Committee Law. In October, two of the most important judges of the Court will retire, one of them being the President of the Court. Postponing the ruling on these appeals until the fall does nothing more than force the hand of the Minister of Justice to convene the Committee on Judicial Appointments. However, Yariv Levin said that he would not do that until the commettee was reformed. Opposition leader Yair Lapid claims the move is an attempt to paralyze the Commission until the legislative process is completed.