MOSCOW (Pakistan Point News / Sputnik - 02nd February, 2023) Israel is at the beginning of a constitutional crisis, as the new government of Prime Minister Benjamin Netanyahu is trying to curb the power of the Israeli Supreme Court through a far-reaching judicial reform, experts told Sputnik.
On January 4, Israeli Justice Minister Yariv Levin rolled out a legal reform package that would limit the authority of the supreme court by giving the cabinet control over the selection of new judges, as well as allowing the country's Parliament, the Knesset, to override the court's rulings with an absolute majority, among other things.
The reforms were proposed almost immediately after the Knesset swore in the most right-wing government in the country's history, formed by Netanyahu's Likud and its ultranationalist and ultra-Orthodox allies, on December 29. This is Netanyahu's sixth term after he was ousted from power in June last year, ending his 12-year run as prime minister. His return to office became possible after his right-wing bloc won 64 seats in the November election, the fifth such vote in less than four years.
"The new government, which was established about a month ago, is probably the most right-wing government, conservative government. So, the government (is) itself an opportunity to do very drastic reforms in many spheres of life, not only in the constitutional sphere," Gad Barzilai, professor of law at the University of Haifa, said.
The professor, who is also a principal investigator at the Minerva Center for the Rule of Law under Extreme Conditions, added that the prime minister is actually more moderate than most of his ministers and that "for this kind of a government, this is now an opportunity to promote a very drastic constitutional change."
In the same vein, Barzilai's University of Haifa colleague and the head of the Minerva Center for the Rule of Law under Extreme Conditions, Professor Eli Salzberger, noted that in the past, Netanyahu did not have a government with enough support for such reforms.
"He (Netanyahu) acts quickly because he thought that it will take time for those opposing it to digest and understand the reforms, consolidate and act against it (he probably underestimated the resistance) and primarily because he wants to reform to affect his own trial (for example, (via) appointing the Supreme Court judges who will eventually hear his appeal if convicted in the district court)," Salzberger explained, adding that Netanyahu had seemingly been preparing this move for several years, taking a leaf from his Hungarian counterpart, Viktor Orban.
The plans put forward by Levin include making changes to the selection committee that appoints judges and increasing the number of members from nine to 11 by adding two ruling coalition members as well as replacing two Israel Bar Association representatives with public representatives picked by the justice minister. In effect, this will allow the ruling coalition to have control over judicial appointments.
Patricia Sohn, associate professor of political science and Jewish studies at the University of Florida, suggested that the reforms reflect an attempt to bring the Israeli judiciary closer to the US model in terms of institutional construction.
"As it stands now, Justices in Israel are appointed by a Judicial Selection Committee with members from several institutions of government as well as from the Israeli Bar. The appointment process that appears to be proposed, in my personal view as a scholar, allows for more intervention of private interest groups, which is a bad thing for judicial independence. It may reflect an effort to 'democratize' the judiciary � that is, to make it more accessible by majoritarian institutional functions and social forces," Sohn told Sputnik.
According to the expert, transforming the judiciary into a majoritarian institution would result in it being unable to perform its functions as "the sole non-majoritarian check on the majoritarian institutions of the executive and legislative branches."
"Interest groups, which may come to serve a sort of oligarchical function in a polity, do not tend to like this degree of judicial independence because it limits their freedom of movement in social, political, and economic realms. But it is better in terms of democratic function for the polity, as a matter of institutional design, and for the people as a matter of participatory democracy in my view," Sohn continued.
The planned judiciary overhaul sparked public criticism and prompted a wave of protests, with about 130,000 taking to the streets in Tel Aviv on January 21 out of concern that the reform would undermine Israeli democracy by taking away judicial independence. At the same time, those supporting the reform claim that the court has grown too powerful in recent years and that the government is planning to democratize it and make it more accountable.
Barzilai, for his part, is not impressed with this argument, saying that Israel's judiciary is open and transparent with everyone being able to read the rulings that are published by the court, which renders the unaccountability argument not particularly weighty. The expert went on to highlight the democratic judiciary's responsibility to criticize a piece of legislation if necessary. Though, he remarked, the judiciary has been active with regard to some issues, while also being less than willing to act on others.
"In some spheres of life, it has been a very active judiciary, (in spheres) like gender equality, equality for homosexuals, privatization of religion. On other things, it has been quite timid and quite limited, like on the issue of 1967 territories and regarding the issue of national security. So, actually, from a research perspective, the judiciary does have a very mixed record," Barzilai said, adding that the Israeli Supreme Court thus cannot be described as overly active because it depends on the area of public policy in question.
In addition, while the supreme court is more liberal than the current Israeli government, it cannot be described as left-wing, according to the expert.
"Some of its judges, at least six or seven, are, I would say, quite right-wing. And then you have another eight, which are more liberal. So, it's a quite mixed supreme court with some advantage to the liberal wing but it really cannot be described as a left-wing court," Barzilai said.
Meanwhile, Sohn pointed to Israel's existing system of regular and randomized review of judicial decisions via an independent committee, saying that "Israel has been exemplary, with a few other countries, including France and Japan, in reviewing its judicial actors, decisions, and processes on a regular basis to ensure correct functioning under their legal systems and institutional design(s)."
"I, personally, would rather see more of this latter type of judicial reform: implementation (and expansion if already present) of regular review of judicial docket, judge decisions, and proper functioning/processes all the while enhancing the power of the judiciary in its (self-restrained) review functions vis a vis the majoritarian institutions (executive and legislative)," Sohn opined.
When asked if the mass protests against the proposed reform could make the government back down, Barzilai answered that so far, the government was accelerating its legislative processes. However, if the demonstrations become larger, reaching about 500,000 people, it could have some effect on the cabinet's initiatives, he added.
"There is another scenario, obviously, a national security crisis like a war in Gaza or in the north, with Hezbollah or with Iran or all of them, and under those conditions, you would see a national unity government and I do not see the opposition joining a government without halting or at least melting down some of the legislative proposals," Barzilai said.
He also stressed the role of the Israeli president who has been trying to find a compromise between the government and the opposition, which could bring about some success in the future. However, the issue of the executive controlling judicial appointments casts doubt over any possible solution.
"As long as the executive may control the judicial nominations, it would be very inconceivable to see a possible compromise," Barzilai said, noting that "right now is only a beginning of the (constitutional) crisis; it is not the peak of the crisis, so we should wait and see."
Salzberger also thinks that the current situation is already a constitutional crisis, drawing attention to the negative reaction from businessmen and tech workers to the judicial reform.
"I cannot predict what will happen, but the fact that so many economists, high tech and business people went against it and warned of dire economic consequences, which might begin to materialize very shortly, might be a significant factor, so does the America response," Salzberger said.
