For years, Israel’s right has sought to rein in the judiciary. Now, as Benjamin Netanyahu works to assemble what is expected to be the most rightwing government in the country’s history, it has a chance to do just that.
Netanyahu’s Likud and its most likely allies — two ultraorthodox parties, and the extreme right Religious Zionism — still have to agree on a coalition deal. But figures from all parties have long made their intentions clear. In July a Likud MP said his goal was to end “rule by judges”.
“If we . . . renege on this promise to the voters [to limit the high court’s powers] and don’t implement it, there is no reason to have a rightwing government,” said Simcha Rothman, a Religious Zionism lawmaker, after last week’s election saw Netanyahu stage a comeback.
Advocates of a judicial overhaul argue it is needed to bring to heel a judiciary that has become increasingly activist over the past three decades, and used powers that it was never formally granted to address issues from migrant quotas to settlements in ways that broadly favour the political left.
Critics, however, see the looming clash over the judiciary as a battle for the soul of Israel, and argue that, if enacted, the changes could pave the way for the descent into illiberalism seen in Hungary and Poland, eviscerate checks and balances and minority protections, and be used to help release Netanyahu from the corruption charges that he has been fighting for the last two years.
Of all the groupings in Netanyahu’s bloc, it is Religious Zionism that has been most outspoken about its proposals. Its plan, released last month, calls for a majority of lawmakers to be able to “override” decisions by the high court to strike down edicts which it deems at odds with Israel’s basic laws; for politicians to control the appointment of judges; for the role of the attorney-general to be split; and for the offence of breach of trust — one of the charges facing Netanyahu — to be scrapped.
Religious Zionism officials argue that these changes will help reset the balance between the executive and the judiciary. “The Israeli system is not democratic,” Rothman said. “You cannot have a court interfering in elected officials’ decision-making in an endless amount of cases, and having no accountability . . . That’s a major reason to reform the judiciary.”
“There is a huge disconnect between voting and creating a government, and policies that are basically set in stone by non-governmental actors,” said Eugene Kontorovich, director of international law at the rightwing think-tank Kohelet Policy Forum. “What we have now is not the rule of law: it’s the rule of lawyers.”
Even staunch defenders of the judiciary acknowledge that there are aspects that could be reformed: the attorney-general’s portfolio of roles contains conflicting duties; the offence of breach of trust is vaguely worded. But they argue that the changes proposed by Religious Zionism and its allies go far beyond fixing problems and, taken together, would put Israeli governments in a position of untrammeled power.
“[The proposals] kick down the foundations on which any democratic values or institutions in Israel today are built. There will be no protection against any policy that they want to pass that violates democratic principles, that violates human rights, that violates what counts as constitutional principles in Israel,” said Dahlia Scheindlin, a political analyst.
“The citizen will have no protection against the state, the subjects of Israeli rule — the Palestinians — will have no protection against the state. It will be a state of an unrestrained majority.”
One of the main reasons critics cite for concern at the proposed changes is that Israeli governments are already subject to relatively light checks and balances. There is no second chamber, no power of veto for the president, and no constitution to limit a government’s room for manoeuvre. Moreover, most laws can be passed or scrapped with a majority of 61 of the Knesset’s 120 seats — a level of support that most governments automatically have.
“The whole system is relying on the court,” said Mordechai Kremnitzer, a senior fellow at the Israel Democracy Institute and professor emeritus at the Hebrew University in Jerusalem. “If you weaken the court and take away its independence, there will be no checks and balances whatsoever.”
Since Religious Zionism’s proposals were unveiled last month, one of the most contentious areas of debate has been the impact they would have on Netanyahu’s trial. The 73-year-old is fighting charges of bribery, fraud and breach of trust that he has dismissed as a politically motivated witch-hunt.
Likud and Bezalel Smotrich, Religious Zionism’s co-leader, have insisted the changes would not be applied retroactively to Netanyahu’s cases. But his opponents have branded the proposals an attempt to ease his legal problems. “It is totally clear that the attempt to scrap certain indictments was intended to apply to the same indictments related to the opposition leader’s trial,” Gideon Sa’ar, the outgoing justice minister, said last month.
For all the debate around Netanyahu, however, analysts say the bigger impact of a radical reining-in of the judiciary is the other policies that it would enable. Netanyahu’s ultraorthodox allies want to strengthen the role of religion in public life, while Religious Zionism has said it would seek to pass legislation previously blocked by the court that would retrospectively legitimise Israeli settlements in the occupied West Bank.
“To me, the system they are looking for is a court that would say yes to any decision of the government,” said Kremnitzer. “But what we need is courts which in most cases say yes — but in some cases, when it is justified, will say no.”